District of Columbia Water and Sewer Authority (Board decision, March 19, 2008)
In re District of Columbia Water and Sewer Authority (EAB NPDES Appeal Nos. 05-02, 07-10, 07-11, and 07-12): permit remanded in part
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Plain-English summary
The District of Columbia Water and Sewer Authority operated the Blue Plains Wastewater Treatment Plant under an NPDES permit covering combined sewer overflows and nitrogen discharges. Four petitions challenged the permit's compliance schedules, its total nitrogen effluent limit, and a provision governing compliance with District water quality standards. The Board held that the permit had to include compliance schedules required by District regulations for selected long-term control plan measures and the nitrogen limit. It also remanded a general interim water quality provision because EPA removed it from the final permit without adequate notice and comment. The Board denied the remaining challenges to the nitrogen limit.
Decision snapshot
- Cited authorities: 33 U.S.C. §§ 1311, 1313, 1341, 1342, and 1370; 40 C.F.R. §§ 122.4, 122.44, 122.47, 124.14, and 124.19
- Outcome: The Blue Plains permit was remanded for required compliance schedules and an interim water quality provision, while the remaining nitrogen-limit challenges were denied.
- Key point: A state water-quality regulation requiring a compliance schedule controls when an NPDES permit implements that state standard, and EPA must provide notice and comment before materially changing permit requirements.
Full text (EPA EAB public release)
714 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
IN RE DISTRICT OF COLUMBIA WATER AND
SEWER AUTHORITY
NPDES Appeal Nos. 05-02, 07-10, 07-11, and 07-12
ORDER DENYING REVIEW IN PART AND REMANDING IN
PART
Decided March 19, 2008
Syllabus
Four petitions seek Board review of a final National Pollutant Discharge Elimination
System (“NPDES”) Permit (generally, the “Blue Plains Permit”) Region 3 (the “Region”) of the United States Environmental Protection Agency (“EPA”) issued to the District of Co- lumbia Water and Sewer Authority (“WASA”) for the operation of its Blue Plains Waste- water Treatment Plant on April 5, 2007 (the “Final Permit”). WASA’s first petition, which originally challenged a Blue Plains Permit issued in 2004, argued that the Region should have included in the Blue Plains Permit a compliance schedule for the implementation of selected controls in WASA’s Combined Sewer Overflow (“CSO”) Long Term Control Plan (“LTCP”). The Board previously dismissed the other issues raised in that petition and stayed consideration of the remaining issue while the Blue Plains Permit underwent further modification. The Board now applies WASA’s remaining argument to the Final Permit. In the second petition, the Chesapeake Bay Foundation (“CBF”) filed a petition arguing that the Region should have included in the Final Permit a compliance schedule for achieving the total nitrogen effluent limit. Third, WASA filed an additional petition challenging the total nitrogen effluent limit in the Final Permit and, mirroring CBF, arguing that the Region should have included in the Final Permit a schedule for compliance with that limit. Finally, Friends of the Earth and the Sierra Club (together, “FOE/SC”) filed a petition contending that the Region improperly modified, without adequate notice and comment, a permit pro- vision relating to compliance with the District of Columbia’s (the “District’s”) water quality standards, and that this modification violates the antibacksliding provisions of the Clean Water Act (“CWA”) and does not properly ensure compliance with the District’s water quality standards. The Board has administratively consolidated these petitions for purposes of review.
These petitions for review involve three basic sets of issues: (1) whether, under the
CWA and District regulations, compliance schedules for implementation of the LTCP and the nitrogen effluent limit must be included in the Final Permit; (2) whether modification of the Blue Plains Permit to replace a total nitrogen goal with the total nitrogen effluent limit was appropriate; and (3) whether the Region provided adequate notice and opportu- nity to comment on the language in the Final Permit that sets the water quality-based re- quirements for CSOs, and whether this language is consistent with the CWA and EPA regulations.
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Held: The Board remands the Final Permit in part and denies review in part.
(1) By failing to include in the Final Permit compliance schedules for implementation of
selected controls in WASA’s LTCP and achievement of the nitrogen effluent limit,
the Region violated District of Columbia Municipal Regulations § 1105.9, which on
its face provides that when a new water quality standard-based effluent limitation is
required in a permit, “[a] compliance schedule must be included in the permit.”
DCMR § 1105.9 (emphasis added). While EPA’s CSO Policy states a preference for
including such compliance schedules in judicial orders for major permittees, it does
not require that such schedules be included only in judicial orders and does not give
the Region discretion to ignore the plain meaning of the District’s water quality stan-
dards regulation. The Board rejects the Region’s argument that it has discretion in
determining whether to include compliance schedules in the Final Permit because
the District’s regulation must be read as being consistent with 40 C.F.R. § 122.47,
which makes inclusion of such schedules discretionary. Congress granted states the
authority to adopt their own water quality standards and effluent limitations that may
be more stringent than federal law, 33 U.S.C. § 1370, and the District was not re-
quired to mirror the language of § 122.47 in adopting DCMR § 1105.9.
On remand, the Region must modify the Final Permit so that it includes compliance
schedules for implementation of selected controls in WASA’s LTCP and achieve-
ment of the nitrogen effluent limit consistent with the District regulations and the
CWA.
(2) With the exception of the compliance schedule for the nitrogen limit covered in
holding (1) above, WASA’s petition challenging the Region’s decision to include the
nitrogen effluent limit in the Final Permit is denied in all respects. WASA failed to
demonstrate why the Region’s response to comments was clearly erroneous, and it
failed to convince the Board that the Region’s Final Permit determination with re-
spect to the nitrogen effluent limit was clearly erroneous or otherwise warranted
review.
(3) In drafting the Final Permit, the Region removed from the draft permit, without pro-
viding notice or opportunity to comment, a general provision requiring that WASA
comply with water quality standards during the twenty-year interim period before
full implementation of its LTCP. In removing the general prohibition that applied
during the interim period, the Region appears to have changed significantly its un-
derlying interpretation of the CWA and CSO Policy. This change was not a “logical
outgrowth” of the previous proposal, and the Region clearly erred by removing the
provision without reopening the comment period. On remand, the Region must mod-
ify the Final Permit to include a general provision ensuring compliance with water
quality standards during the interim period or reopen the comment period and pro-
vide opportunity to comment on this issue and then provide an adequate response to
any such comments received.
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716 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
Before Environmental Appeals Judges Edward E. Reich, Kathie A.
Stein, and Anna L. Wolgast.
Opinion of the Board by Judge Stein:
I. INTRODUCTION
Four petitions filed under 40 C.F.R. § 124.19(a) seek Environmental Ap-
peals Board (“Board”) review of certain modifications to National Pollutant Dis- charge Elimination System (“NPDES”) Permit No. DC0021199 (generally, the “Blue Plains Permit”), which U.S. Environmental Protection Agency (“EPA”), Re- gion 3 (the “Region”), issued to the District of Columbia Water and Sewer Au- thority (“WASA”) for operation of its Blue Plains Wastewater Treatment Plant (“Blue Plains”).1 WASA timely filed the first petition, NPDES Appeal Num- ber 05-02 (“App. 05-02”), on January 18, 2005. We dismissed most issues in this appeal, but one remaining issue, which had been stayed, now is ripe for review; specifically, whether the Region should have included in the Blue Plains Permit a compliance schedule for implementation of selected controls in WASA’s Com- bined Sewer Overflow Long Term Control Plan (“LTCP”). The remaining three petitions all were timely filed on May 7, 2007. The Chesapeake Bay Foundation (“CBF”) filed NPDES Appeal Number 07-10 (“App. 07-10”), arguing that the Re- gion should have included in the Blue Plains Permit a compliance schedule for achieving the permit’s total nitrogen effluent limit.2 WASA filed NPDES Appeal Number 07-11 (“App. 07-11”), challenging the total nitrogen effluent limit that the Region included in the Blue Plains Permit and, mirroring the challenge filed by CBF, arguing that the Region should have included a compliance schedule for achieving that limit. Friends of the Earth and the Sierra Club (together, “FOE/SC”) filed NPDES Appeal Number 07-12 (“App. 07-12”), contending that the Region improperly added to the Blue Plains Permit, without adequate notice and com- ment, a permit condition relating to compliance with the District of Columbia’s (the “District’s”) water quality standards, and further that this provision violates the antibacksliding provisions of the CWA and does not properly ensure compli- ance with the District’s water quality standards. The Region filed timely responses to all of these petitions, arguing that they should be denied. We have administra-
1 Under the Clean Water Act (“CWA”), persons who discharge pollutants from point sources
into waters of the United States must have a permit in order for the discharge to be lawful. CWA
§ 301, 33 U.S.C. § 1311. The NPDES program is one of the principal permitting programs under the CWA. See CWA § 402, 33 U.S.C. § 1342; see also infra Part II.C (describing statutory and regulatory background of NPDES program).
2 “Effluent limitation means any restriction imposed by the [permit issuer] on quantities, dis-
charge rates, and concentrations of ‘pollutants’ [that] are ‘discharged’ from ‘point sources’ into ‘waters of the United States’ * * *.” 40 C.F.R. § 122.2.
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tively consolidated these petitions for purposes of our analysis.3
As discussed below, based on our consideration of the issues presented, we
remand the version of the Blue Plains Permit the Region issued on April 5, 2007 (referenced herein as the “Final Permit”) in part and deny review of the Final Per- mit in part. Specifically, we: (1) remand the Final Permit to the Region because it failed to include a permit term containing a compliance schedule to implement the selected controls in WASA’s LTCP; (2) remand the Final Permit to the Region because it failed to include a permit term containing a compliance schedule for achieving the total nitrogen effluent limit; (3) deny review of the Final Permit based on WASA’s challenges to the total nitrogen limit; and (4) remand the Final Permit to the Region because the Region failed to provide adequate notice and opportunity to comment on the Final Permit language related to water qual- ity-based effluent limitations.
II. BACKGROUND
A. Factual and Procedural Background
Blue Plains, located in the District, is the largest advanced wastewater treat-
ment facility in the world. See Reg. Appeal 07 Exhibit 3 (April 5, 2007 Fact Sheet), at 7.4 The collection system includes 1,800 miles of sanitary sewers along with combined sewers that convey both sanitary wastewater and storm water. Id. When the capacity of the combined sewer system is exceeded during storms, the combined excess flow is discharged to the receiving streams through combined sewer overflow (“CSO”)5 outfalls. There are fifty-three active CSO outfalls listed
3
WASA’s petition in App. 05-02 sought Board review under 40 C.F.R. § 124.19(a) of the
Blue Plains Permit the Region issued in December 2004. As we explain infra in Part II.A, the Region subsequently modified the Blue Plains Permit on April 5, 2007 (the “Final Permit”), after proposing a series of draft permits. The Region did not include a compliance schedule for implementing the LTCP controls in this Final Permit. Accordingly, the arguments that WASA raised with respect to the lack of compliance schedule in the December 2004 Permit apply equally to the Final Permit. In this decision we apply WASA’s arguments in App. 05-02, which originally challenged the December 2004 Permit, to the current Final Permit.
4 This citation refers to Exhibit 3 of the set of exhibits that the Region filed with its response to
Apps. 07-10, 07-11, and 07-12. Hereinafter, “Reg. 07 Ex.” will refer to an exhibit that the Region filed in response to these appeals. Similarly, “Reg. 05 Ex.” will refer to an exhibit filed with the Region’s response to App. 05-02. Citations to the Region’s other filings and citations to WASA’s exhibits and filings will follow a similar format.
5 A CSO is a discharge from a combined sewer system to a point other than the wastewater
treatment facility input pipeline, where the combined sewer system should normally discharge. See Combined Sewer Overflow Control Policy, 59 Fed. Reg. 18,688, 18,689 (Apr. 19, 1994) (“CSO Policy”).
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in the Final Permit. See Reg. 07 Ex. 2 (Final Permit), at 2-12. These CSO outfalls discharge to the Anacostia River, the Potomac River, and Rock Creek. See Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 7. Blue Plains is designed to provide ad- vanced wastewater treatment and excess flow treatment during wet weather con- ditions. Flow receiving advanced treatment is discharged from Outfall 002, and flow receiving excess flow treatment is discharged from Outfall 001. See Reg. 07 Ex. 2 (Final Permit), at 2-12.
The Blue Plains Permit has had a long and tortured procedural history. The
Region issued WASA’s most recent fully effective Blue Plains Permit on January 22, 1997 (the “1997 Permit”). In July 2002, WASA completed its LTCP and sub- mitted it to the Region and the District’s Department of Health for their review and approval.6 Reg. 05 Ex. 4 (Dec. 16, 2004 Fact Sheet). WASA’s LTCP provides for the construction and operation of an underground tunnel system to capture combined excess flow during and after rainfall events. The LTCP also provides for the use of wet weather capacity at Blue Plains to treat excess flow not cap- tured in the tunnels. According to WASA, when fully implemented, the selected controls in the LTCP will reduce CSO discharges by approximately 96% over uncontrolled levels, based on average annual wet weather conditions. WASA 07 Petition at 6.
The Region issued WASA a modified Blue Plains Permit on January 24,
2003 (the “January 2003 Permit”). Among other things, the January 2003 Permit established a nitrogen effluent “goal” of not greater than 8,467,200 pounds per year. See Reg. 05 Ex. 4 (Dec. 16, 2004 Fact Sheet). Both WASA and FOE/SC filed petitions for review of the January 2003 Permit in February and March, re- spectively, of that year. After a period of negotiations, the Region withdrew the contested permit terms, including the provision establishing the nitrogen goal, and proposed a draft modified permit for public comment on March 13, 2004 (the “March 2004 Draft Permit”).
After receiving public comments on the March 2004 Draft Permit, the
Region issued another modified Blue Plains Permit on December 16, 2004 (the “December 2004 Permit”). By this time, both the District and the Region had ap- proved the LTCP. See Reg. 05 Ex. 4 (Dec. 16, 2004 Fact Sheet), at 15. In addition to addressing the previously challenged January 2003 Permit conditions, this per- mit modification added “Phase II” permitting conditions, requiring implementa-
6 LTCPs are plans that set forth control options and strategies that, once implemented, enable
combined sewer systems to achieve compliance with the CWA. 59 Fed. Reg. at 18,691. LTCPs are required by EPA’s CSO Policy, explained infra Part II.C.
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tion of the LTCP, pursuant to EPA’s CSO Policy.7 See Reg. 05 Ex. 4 (Dec. 14, 2006 Fact Sheet). On December 15, 2004, the District’s Department of Health had certified, without conditions, that the December 2004 Permit would not violate the District’s water quality standards.8 See Reg. 05 Ex. 6 (Dec. 15, 2004 § 401 certification). The December 2004 Permit required WASA to comply immedi- ately with the performance standards in the LTCP.9
Because the parties understood that, notwithstanding the terms of the De-
cember 2004 Permit, WASA would not be able to comply with the performance standards in the LTCP until the LTCP was fully implemented, on December 16, 2004, the parties lodged a consent decree in federal district court setting forth schedules for implementing the selected CSO controls in the LTCP.10 See Reg. 05 Ex. 7 (Anacostia Watershed Soc’y v. D.C. Water & Sewer Auth., Consol. Civ. Action No. 1:00-cv-00183-TFH (D.D.C. filed Dec. 16, 2004)) (the “Consent De- cree”); Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 4. The Consent Decree calls for implementation of WASA’s LTCP according to a schedule that spans twenty years and may be extended under certain circumstances. Reg. 05 Ex. 7 (Consent Decree), at 11-23. Significantly for purposes of this case, the Region did not in-
7 The CWA requires permits to conform to the CSO Policy, which is published in the Federal
Register at 59 Fed. Reg. 18,688 (Apr. 19, 1994). See CWA § 402(q)(1), 33 U.S.C. § 1342(q)(1); infra Part II.C (explanation of CSO Policy). The CSO Policy explains that a permit is considered a “Phase I” permit during the development of the LTCP. Once the LTCP is approved, a permit is considered a “Phase II” permit, requiring implementation of the LTCP. See 59 Fed. Reg. at 18,695-96; see also infra Part II.C.
8 CWA § 401 requires all NPDES permit applicants to obtain a certificate from the appropriate
state agency validating the permit’s compliance with the pertinent federal and state water pollution control standards. CWA § 401(a)(1), 33 U.S.C. § 1341(a)(1). Any conditions that the state places on the certification must be included in the permit. See CWA § 401(a)(2), 33 U.S.C. § 1341(a)(2).
9 The Region stated that “[c]onsistent with the CSO Policy, the [December 2004 Permit] re-
quires implementation of the LTCP immediately upon issuance of this permit.” Reg. 05 Ex. 4 (Dec. 16, 2004 Fact Sheet), at 14.
10 The enforcement history of this Consent Decree is as follows. On December 6, 2002, the
United States filed a complaint against WASA alleging that WASA violated the CWA and WASA’s 1997 Permit by failing to comply with certain requirements set forth in the permit and the CSO Policy, and by violating the District’s water quality standards. See United States v. D.C. Water & Sewer Auth., Civ. Action No. 1:02-cv-12511-TGH (D.D.C.). The United States also named the District as a defen- dant. Several environmental groups had filed a similar complaint against WASA in January 2000, see Anacostia Watershed Soc’y v. D.C. Water & Sewer Auth., Civ. Action No. 1:00-cv-00183-TFH (D.D.C.), and these actions eventually were consolidated. A partial consent decree among the parties, resolving a portion of the case, was entered on October 10, 2003. The Consent Decree was lodged on December 16, 2004, in coordination with the issuance of the December 2004 Permit, resolved all remaining allegations, including the water quality standards violations. This Consent Decree was en- tered on March 25, 2005. The Consent Decree describes the requirements for WASA’s implementation of its LTCP. See Reg. 05 Ex. 7 (Consent Decree).
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clude any compliance schedule in the December 2004 Permit for implementing the selected CSO controls in the LTCP.
Both FOE/SC and WASA filed timely petitions for review of the December
2004 Permit, which were designated NPDES Appeal Numbers 05-01 and 05-02, respectively. Both petitions sought review of the water-quality based requirements for CSOs, although for different reasons. In addition, WASA sought review of the Region’s decision not to include in the December 2004 Permit a compliance schedule for implementation of its LTCP. After another period of negotiations among the parties, the Region withdrew the contested permit terms and stated that it would propose modifications to them. Subsequently, the parties filed, and the Board granted, a Motion on Consent to Dismiss FOE/SC’s petition in its entirety and WASA’s petition as to all issues save one – whether a compliance schedule for the LTCP is required in the Blue Plains Permit. The Board stayed the latter issue, pending issuance of an additional permit modification.
On August 18, 2006, the Region published for public comment another
draft permit modification (the “August 2006 Draft Permit”), proposing: (1) to re- place the existing water quality-based requirements for CSOs with a provision stating that the performance standards for the LTCP would be the water qual- ity-based effluent limits for CSO discharges, and that until the LTCP is fully im- plemented a general water quality standards provision similar to that set forth in the 1997 Permit would apply;11 (2) to delete the Total Maximum Daily Load (“TMDL”)-derived effluent limits;12 and (3) to replace the existing nitrogen goal with an interim nitrogen effluent limit for Outfall 002 and include an interim com- pliance schedule in the Blue Plains Permit for achieving that limit.13 See Reg. 07 Ex. 9 (Aug. 2006 Draft Permit), at 13, 56; id. Ex. 10 (Aug. 18, 2006 Draft Fact
11
We set forth the history of this permit provision at Part III.D.1, infra.
12 A TMDL is a calculation of the maximum amount of a pollutant that a water body can
receive and still meet water quality standards, and an allocation of that amount to the pollutant’s sources. See CWA § 303(d), 33 U.S.C. § 1313(d); 40 C.F.R. § 130.7. The Region explained that the United States Court of Appeals for the District of Columbia Circuit remanded the Anacostia River TMDLs for total suspended solids (“TSS”) and biochemical oxygen demand (“BOD”) on April 25, 2006. See Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 5 n.1 (citing Friends of the Earth v. EPA, 446 F.3d 140 (D.C. Cir. 2006)).
13
In the accompanying draft fact sheet, the Region stated that:
Meeting the final [Chesapeake] Bay allocation for nitrogen will require
the expenditure of significant funds, planning and public involvement.
Accordingly, a schedule for compliance will be needed. This permit in-
corporates an interim schedule which is intended to move the process
forward so that when the Blue Plains permit is reissued in 2008, a more
comprehensive schedule may be included in that permit.
Reg. 07 Ex. 10 (Aug. 18, 2006 Draft Fact Sheet), at 5.
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Sheet), at 4-5. WASA, FOE/SC, and CBF, along with others, submitted com- ments on the August 2006 Draft Permit.
After the close of the comment period, on December 14, 2006, the Region
published for public comment yet another proposed modification to the Blue Plains Permit (the “December 2006 Draft Permit”). In a departure from the August 2006 Draft Permit, the December 2006 Draft Permit proposed to include a final nitrogen limit,14 without a schedule for compliance with that limit.15 On January 29, 2007, the District’s Department of the Environment certified, pursuant to CWA § 401, that the December 2006 Draft Permit would comply with the Dis- trict’s water quality standards.16 See Reg. 07 Ex. 5 (Jan. 29, 2007 § 401 certifica- tion). WASA, FOE/SC, and CBF again were among the organizations to comment on this draft permit.
On April 5, 2007, the Region issued the Final Permit modification.17 In it,
the Region purported to address the challenges to the December 2004 Permit and, as it had proposed in the December 2006 Draft Permit, added a nitrogen limit to the Final Permit. Rather than including a schedule for compliance with the new nitrogen limit in the Final Permit, the Region stated that a schedule would “be part of a separate compliance agreement,” Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Comments), at 9, potentially the Consent Decree, Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 6. In addition, the Region eliminated in its entirety the general water quality standards provision, which had appeared in the August 2006 Draft Permit, requiring WASA to comply with the District’s water quality standards provision until the LTCP is fully implemented. As discussed more fully below, the Final Permit instead stated that the LTCP performance standards would oper- ate as the water quality-based effluent limits for CSO discharges.
14 An effluent “limit” is enforceable, whereas an effluent “goal” is not. The new total nitrogen
effluent limit for the entire Blue Plains facility is 4,689,000 pounds per year. See Reg. 07 Ex. 2 (Final Permit), at 52. WASA states that it will not be able to comply with the new final total nitrogen limit efficiently and cost-effectively without changes to its current LTCP and the Consent Decree. See WASA 07 Petition at 6. The Region understands that Blue Plains is not currently capable of achieving the new limit. See Reg. 07 Ex. 12 (Dec. 14, 2006 Fact Sheet).
15 The Region instead stated that it intended to establish a schedule for compliance with the
nitrogen limit in a separate enforceable document, potentially the Consent Decree. Reg. 07 Ex. 12 (Dec. 14, 2006 Draft Fact Sheet), at 5. To date, such a compliance schedule has not been established. At oral argument before the Board, the Region agreed that it had an “aspiration” to have such a compli- ance schedule and stated that “we have ongoing discussions with WASA with respect to that.” Tr. at 91.
16 See supra note 8 and accompanying text.
17 Because the Region considered this permit modification final, it did not subject it to further
public notice and comment.
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B. Petitions for Review
As explained above, the Board received three petitions for review of this
Final Permit: App. 07-10, from CBF; App. 07-11, from WASA; and App. 07-12, from FOE/SC. On July 26, 2007, the Board administratively consolidated App. 05-0218 and Apps. 07-10, 07-11, and 07-12.
1. Appeal No. 05-02, Petitioner – WASA
WASA filed App. 05-02 on January 18, 2005. As explained previously,
only one issue remains in this appeal: WASA’s argument that the Region should have included, in the Blue Plains Permit, a compliance schedule for implementa- tion of the selected controls in its LTCP. According to WASA, without a compli- ance schedule, the Blue Plains Permit violates District of Columbia Municipal Regulations title 21, section 1105.9 (“DCMR § 1105.9”), which states that when a new water quality-based effluent limitation is included in an NPDES permit, “[a] compliance schedule shall be included in the permit.” WASA also argues that, without a compliance schedule, the Blue Plains Permit fails to conform to the CSO Policy. On April 30, 2007, after the Board lifted the stay on this appeal, the Region filed its response to the remaining issue in App. 05-02. In its response, the Region argues that its decision to include a compliance schedule for implementa- tion of the LTCP in the Consent Decree, rather than in the Blue Plains Permit, was an appropriate exercise of its discretion.
On July 26, 2007, the Board issued an order granting the National Associa-
tion of Clean Water Agencies and the Wet Weather Partnership (together, “NACWA/WWP”) leave to file a non-party brief in this appeal. According to their brief, these organizations represent the interests of wastewater treatment agencies and communities with combined sewer systems. NACWA/WWP argue in favor of the inclusion in the Blue Plains Permit of a compliance schedule for the imple- mentation of the LTCP. See Joint Non-Party Brief of NACWA/WWP on the Re- maining Issue in Appeal No. 05-02 (Aug. 22, 2007). The Region filed a reply to this brief on September 28, 2007.
2. Appeal No. 07-10, Petitioner – Chesapeake Bay Foundation
CBF filed App. 07-10 on May 7, 2007. The sole issue in CBF’s petition is
whether the Region should have included, in the Final Permit, a compliance schedule for achieving the total nitrogen effluent limit established for Outfall 002. In support of its argument, CBF, mirroring WASA’s challenge in App. 05-02, contends that without a compliance schedule, the Final Permit violates DCMR
18 As explained previously, one component of this WASA petition had been stayed, pursuant
to a Board order, and now is ripe for review.
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§ 1105.9. CBF also argues that not including a compliance schedule in the Final Permit, even if one eventually may be included elsewhere, ignores EPA’s obliga- tion to provide notice and opportunity to comment on a compliance schedule. The Region filed a response to this petition, as well as to the petitions in Apps. 07-11 and 07-12, on July 6, 2007. The Region argues that we should uphold the Final Permit because placing a compliance schedule for achieving the nitrogen limit in the Final Permit was discretionary on the Region’s part.
On October 17, 2007, the Board issued an order granting NACWA/WWP
leave to file a non-party brief in Apps. 07-10 and 07-11. Their brief is limited to the issue of whether a compliance schedule for the implementation of the nitrogen effluent limit should be included in the Final Permit. Similar to their position in App. 05-02, NACWA/WWP argue in favor of the inclusion of such a schedule.
3. Appeal No. 07-11, Petitioner – WASA
WASA filed App. 07-11 on May 7, 2007. The issues raised in this appeal
relate to the Region’s decision to replace the total nitrogen effluent goal with a final total nitrogen effluent limit for Outfall 002. The Region assigned WASA its nitrogen effluent limit based on analysis conducted by the Chesapeake Bay Pro- gram, which allocated effluent caps to the three jurisdictions served by the Blue Plains facility: the District of Columbia, Maryland, and Virginia. WASA argues that: (1) the allocation itself was erroneous and unlawful because it was developed outside of the rulemaking and permit modification processes; (2) the Region failed to acknowledge deficiencies in the allocation process; (3) the Region failed to respond to WASA’s comments with respect to the relative contributions of the three jurisdictions; and (4) the imposition of a nitrogen limit was premature given that WASA currently is in the process of developing a Total Nitrogen/Wet Weather Plan that will address nitrogen discharges. Paralleling CBF in App. 07-10, WASA additionally argues that the Region should have included in the Final Permit a compliance schedule for achieving the total nitrogen effluent limit. WASA argues that without a compliance schedule the permit violates DCMR
§ 1105.9, and also argues, as a procedural matter, that the Region erred because it did not provide a rational basis for not including a compliance schedule in the permit. In a response filed on July 6, 2007, the Region argues that it did not com- mit clear error because all of the terms relating to the nitrogen limit constituted a reasonable exercise of its discretion, and its responses to comments pertaining to these matters were reasonable and appropriate.19
19 As noted supra Part II.B.1, NACWA/WWP have filed a non-party brief in this appeal.
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4. Appeal No. 07-12, Petitioner – FOE/SC
FOE/SC filed App. 07-12 on May 7, 2007. FOE/SC object to the elimina-
tion in the Final Permit of the general language requiring compliance with the District’s water quality standards. FOE/SC argue that this change is procedurally flawed because it was not subject to notice and comment and is substantively flawed because it violates the CWA’s antibacksliding provisions and does not en- sure compliance with the District’s water quality standards. WASA has intervened in this appeal, and on July 6, 2007, filed a brief, pursuant to a Board order,20 generally agreeing with the Region’s position in the case. The Region’s July 6, 2007 response argues that the Final Permit need not have been subject to further notice and comment because its terms and conditions were a logical outgrowth of the December 2006 Draft Permit. The Region further denies that the Final Permit violates the antibacksliding provisions or that it fails to ensure compliance with water quality standards. FOE/SC filed a reply to the Region’s and WASA’s re- sponses on July 23, 2007, and the Region filed a surreply on August 3, 2007.
5. Oral Argument and Subsequent Filings
The Board heard oral argument with respect to these consolidated cases on
November 15, 2007.21 On December 13, 2007, the Region filed a Supplemental Response, purportedly in response to Board questions raised during oral argu- ment. WASA, CBF, and FOE/SC each replied to this Supplemental Response on January 4, 2008, pursuant to a December 20, 2007 Board order.22
C. Statutory and Regulatory Background
Congress enacted the CWA in 1972 “to restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.” CWA § 202(a), 33 U.S.C. § 1251(a). The CWA prohibits discharges from point sources23 to wa- ters of the United States, unless authorized by a permit or an applicable statutory provision. CWA § 301(a), 33 U.S.C. § 1311(a). Section 402 of the CWA autho- rizes the EPA Administrator (or his or her delegate) to issue permits for the dis- charge of pollutants, provided that certain statutory requirements are satisfied.
20 See Order Granting Motion for Leave to Intervene (EAB June 15, 2007).
21 The transcript to this oral argument will hereinafter be cited as “Tr.”
22 See Order Setting Deadline for Replies to Region’s Supplemental Response to Board Ques-
tions (EAB Dec. 20, 2007).
23 A “point source” is defined as “any discernable, confined and discrete conveyance, including
but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” CWA § 502(14), 33 U.S.C. § 1362(14).
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CWA § 402(a), 33 U.S.C. § 1342(a). The NPDES permit program, set forth in CWA § 402, 33 U.S.C. § 1342, and 40 C.F.R. part 122, is the primary means through which EPA implements this regulatory regime. Under section 402 of the CWA, permitted discharges must, among other things, comply with sections 301 and 306 of the CWA.24 CWA § 402(a)(1), 33 U.S.C. § 1342(a)(1). CSOs occur- ring within combined sewer systems are considered point sources subject to NPDES permitting requirements. 59 Fed. Reg. 18,868, 18,869 (Apr. 19, 1994). NPDES permits issued to point source dischargers must include technology-based effluent limitations and, when these limitations are insufficient to attain or main- tain applicable state water quality standards, additional water quality-based efflu- ent limitations.25 See CWA § 302, 33 U.S.C. § 1312; see also 40 C.F.R.
§ 122.44(d). Pursuant to 40 C.F.R. § 122.4(d), permits must “ensure” compliance with state water quality requirements. Moreover, the CWA prohibits (with limited exceptions) modification of an NPDES permit to contain water quality-based lim- its that are less stringent than the comparable effluent limits in the previous per- mit. CWA § 402(o), 33 U.S.C. § 1342(o); see also 40 C.F.R. § 122.44(l). These provisions generally are referred to as the “antibacksliding” provisions.
EPA issued its CSO Policy in 1994, in recognition that CSOs can cause
exceedances of state water quality standards and in an effort to expedite compli- ance with the CWA for CSOs. 59 Fed. Reg. 18,688, 18,689 (Apr. 11, 1994). This policy “establish[ed] a consistent national approach for controlling discharges from CSOs to the Nation’s waters through the [NPDES] program.” Id. at 18,688. Congress incorporated the CSO Policy into the CWA, at section 402(q), on De- cember 15, 2000, as part of the Wet Weather Water Quality Act of 2000, Pub. L. No. 106-554, 114 Stat. 2763 (codified at 33 U.S.C. § 1342(q)). Specifically, the CWA provides that “[e]ach permit, order, or decree issued pursuant to this chapter after December 21, 2000 for a discharge from a municipal combined storm and sanitary sewer shall conform to the Combined Sewer Overflow Control Policy
-
-
- .” CWA § 402(q)(1), 33 U.S.C. § 1342(q)(1). The CSO Policy has three
primary goals: (1) to bring wet weather discharge points into compliance with technology-based and water quality-based requirements of the CWA; (2) to mini- mize water quality, aquatic biota, and human health impacts from CSOs; and (3) to ensure that if CSOs occur, they occur only as a result of wet weather. 59 Fed. Reg. at 18,689.
- .” CWA § 402(q)(1), 33 U.S.C. § 1342(q)(1). The CSO Policy has three
24 CWA § 301 requires compliance with effluent limitations. 33 U.S.C. § 1311. CWA § 306
-
requires EPA to set federal standards of performance for sources of pollutants, including point sources, and allows states to develop procedures for enforcing these standards. 33 U.S.C. § 1316.
25 Water quality standards are “[s]tate adopted, or [f]ederally promulgated rules [that] serve as
the goals for the water body and the legal basis for the water quality-based NPDES permit require- ments under the CWA. [Water quality standards] consist of uses which [s]tates designate for their water bodies, criteria to protect the uses, an antidegradation policy to protect the water quality im- provements gained and other policies affecting the implementation of the standards.” 59 Fed. Reg. 18,694; see also CWA § 303(c), 33 U.S.C. § 1313(c).
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The CSO Policy sets forth a two-phased approach to achieve compliance,
focused on the attainment of water quality standards. A permittee’s “Phase I” per- mit must set forth nine minimum controls that the permittee is required to imple- ment,26 and the permit also must include a requirement for the permittee to de- velop an LTCP to achieve discharges that would meet the applicable water quality standards. In addition, Phase I permits must include a requirement to comply with the state’s applicable water quality standards, no later than the date allowed under those standards, expressed in the form of a narrative limitation. Id. at 18,696. A “Phase II” permit follows the permittee’s development of its LTCP and requires LTCP implementation. The CSO Policy states that Phase II permits must include, inter alia, water quality-based effluent limits under 40 C.F.R. § 122.44(d)(1) and 122.44(k), requiring compliance with the numeric performance standards for the selected CSO controls in the LTCP. See 59 Fed. Reg. at 18,696. Permittees may choose either the “presumption” or the “demonstration” approach when devising a LTCP.27 Permittees such as WASA that choose the “demonstration” approach must demonstrate, inter alia, that “the planned control program is adequate to meet [water quality standards] and protect designated uses * * * [and] [t]he CSO discharges remaining after implementation of the planned control program will not preclude the attainment of water quality standards or the receiving waters’ designated uses or contribute to their impairment.” Id. at 18,693, 18,696.
III. DISCUSSION
These appeals involve three basic sets of issues: (1) whether, under the
CWA and District regulations, compliance schedules for implementation of the selected controls in WASA’s LTCP and the new nitrogen effluent limit must be included in the Final Permit; (2) whether the modification of the Blue Plains Per- mit to replace the total nitrogen goal with the total nitrogen effluent limit was appropriate in light of the CWA and EPA regulations, and whether the Region
26 The “nine minimum controls” articulated in the CSO Policy are: “(1) Proper operation and
regular maintenance programs for the sewer system and the CSOs; (2) Maximum use of the collection system for storage; (3) Review and modification of pretreatment requirements to assure CSO impacts are minimized; (4) Maximization of flow to the POTW for treatment; (5) Prohibition of CSOs during dry weather; (6) Control of all solid and floatable materials in CSOs; (7) Pollution prevention; (8) Pub- lic notification to ensure that the public receives adequate notification of CSO occurrences and CSO impacts; and (9) Monitoring to effectively characterize CSO impacts and the efficacy of CSO con- trols.” 50 Fed. Reg. at 18,691.
27 Under the “presumption” approach, a program that meets certain criteria, listed in the CSO
Policy, would be presumed to provide an adequate level of control to meet the CWA’s water qual- ity-based requirements. Permittees that do not meet the criteria for the “presumption” approach may opt to follow the “demonstration” approach, which allows permittees to demonstrate that their selected control programs are adequate to meet the CWA’s water quality-based requirements. See 59 Fed. Reg. at 18,692-93.
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provided adequate notice and opportunity to comment on this modification; and (3) whether the Region provided adequate notice and opportunity to comment on the language in the Final Permit that sets the water quality-based requirements for CSOs, and whether this language is consistent with the CWA and EPA regula- tions. We will address each set of issues in turn.
A. Standard of Review
Under 40 C.F.R. § 124.19(a), the Board generally will not grant review of
NPDES permit decisions unless the permit conditions at issue are based on clearly erroneous findings of fact or conclusions of law or involve important policy con- siderations that the Board, in its discretion, should review. 40 C.F.R. § 124.19(a); see also In re Hecla Mining Co., 13 E.A.D. 216, 223 (EAB 2006); In re Gov’t of D.C. Mun. Separate Storm Sewer Sys., 10 E.A.D. 323, 333 (EAB 2002); In re City of Irving Mun. Separate Storm Sewer Sys., 10 E.A.D. 111, 122 (EAB 2001). The Board’s analysis of NPDES permit petitions is guided by the preamble to the part 124 permitting regulations, which states that the Board’s power of review “should be only sparingly exercised.” 45 Fed. Reg. 33,290, 33,412 (May 19, 1980); accord In re Teck Cominco Alaska Inc., 11 E.A.D. 457, 472 (EAB 2004). In addition, EPA policy favors final adjudication of most permits at the permit issuer’s level. 45 Fed. Reg. at 33,412; Teck Cominco, 11 E.A.D. at 472. The peti- tioners bear the burden of demonstrating that review is warranted. 40 C.F.R.
§ 124.19(a)(1)-(2); see also Hecla Mining, 13 E.A.D. at 223.
In addition, to preserve an issue for appeal, petitioners must first raise “all
reasonably ascertainable issues and * * * all reasonably available arguments sup- porting [the petitioner’s] position” during the public comment period on the draft permit. 40 C.F.R. §§ 124.13, .19; Hecla Mining, 13 E.A.D. at 223; In re Town of Westborough, 10 E.A.D. 297, 304 (EAB 2002). The petitioner must also explain with sufficient specificity why a permit issuer’s previous responses to its objec- tions were clearly erroneous, an abuse of discretion, or otherwise warrant Board review. 40 C.F.R. § 124.19(a); Hecla Mining, 13 E.A.D. at 223.
B. Compliance Schedules
As explained above, three of the petitions in this matter contain arguments
that a compliance schedule of some sort should have been included in the Final Permit. In App. 05-02, WASA argues that the Region should have included, in the Blue Plains Permit, a compliance schedule for implementation of the selected controls in WASA’s LTCP. NACWA/WWP’s non-party brief generally supports WASA’s position. In Apps. 07-10 and 07-11, CBF and WASA, respectively, ar- gue that the Region should have included, in the Final Permit, a compliance schedule to achieve the new total nitrogen effluent limit for Outfall 002. NACWA/WWP’s non-party brief generally supports CBF’s and WASA’s posi-
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tions in those appeals. We explain below the specific arguments each party raises to support its position.
1. Appeal No. 05-02
In App. 05-02, WASA argues that the Region should have included in the
Final Permit a compliance schedule for implementation of the selected controls in the LTCP, pursuant to the CSO Policy and DCMR § 1105.9. As WASA explains, the CSO Policy provides that Phase II permits (such as the permit at issue) should include water quality-based effluent limits requiring compliance with, “no later than the date allowed under the [s]tate’s [water quality standards],” the numeric performance standards for the selected CSO controls. 59 Fed. Reg. at 18,696. The District’s water quality standards, in turn, contain the following provision:
When the Director requires a new water quality stan-
dard-based effluent limitation in a discharge permit, the
permittee shall have no more than three (3) years to
achieve compliance with the limitation, unless the permit-
tee can demonstrate that a longer compliance period is
warranted. A compliance schedule shall be included in
the permit.
DCMR § 1105.9 (emphasis added). Based on the plain language of this regula- tion, and WASA’s assertion that “[t]he obligation to implement the LTCP is un- questionably ‘a new water quality standard based effluent limitation’ within the meaning of the [District’s water quality standards],” WASA argues that the Re- gion is required to include a compliance schedule for implementation of the se- lected LTCP controls in the Final Permit, and that the Region’s failure to do so constitutes a clear error of law. WASA 05 Petition at 23. WASA also argues that inclusion of a compliance schedule only in the Consent Decree, as the Region has done, does not address WASA’s continued noncompliance with the Phase II water quality-based effluent limits in the Final Permit or insulate WASA from enforce- ment action based on noncompliance with those limits.28 See id. at 24; Tr. at 18-19.
For their parts, NACWA/WWP agree that because the District has the au-
thority to set its own water quality standards and to set an implementation strategy to achieve them, see 33 U.S.C. § 1313, and because the District’s implementing regulations state that a compliance schedule shall be included in the permit, the Region has no choice but to include one. NACWA/WWP’s 05 Brief at 4-5.
28 In Section XVII of the Consent Decree, the United States expressly reserves the right to
commence an enforcement action against WASA based on violations of the permit. Reg. 05 Ex. 7 (Consent Decree), at 45.
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NACWA/WWP acknowledge, however, that the CSO Policy supports the use of compliance schedules in consent decrees for major permittees, as the Region ar- gues (see discussion of Region’s arguments below). NACWA/WWP observe that because inclusion of a compliance schedule in a permit does not preclude inclu- sion in a consent decree, the District rules and the federal rules are not in conflict. Accordingly, NACWA/WWP suggest that the best approach in the present case would be to include a compliance schedule in both documents. Id. at 7-8. They state that “[t]his approach provides the permittee with the protection it is entitled to in the permit and allows for amendments to the schedule to be considered in the context of the consent decree where procedures for amending schedules and resolving disputes which may occur in the lengthy LTCP context are more appro- priately addressed.” Id. at 9.
In response to WASA’s petition and NACWA/WWP’s non-party brief, the
Region asserts that its decision to include the compliance schedule for the imple- mentation of the LTCP controls in the Consent Decree, rather than in the Blue Plains Permit, constituted an appropriate exercise of its discretion. Reg. 05 Re- sponse at 11; Reg. 05 Reply to NACWA/WWP at 3-4. In support of its position, the Region cites to the CSO Policy, which provides that once the LTCP controls have been selected, the permitting authority should include a schedule for imple- mentation of the plan in “an appropriate enforceable mechanism.” Reg. 05 Re- sponse at 11 (citing 59 Fed. Reg. at 18,696). According to the Region, it was appropriate to include the compliance schedule in the Consent Decree because the CSO Policy states that, with respect to “major permittee[s]” such as WASA, “the compliance schedule should be placed in a judicial order.” Id. at 13 (citing 59 Fed. Reg. at 18,696). According to the Region, “at the very least, the CSO Policy ex- presses a clear preference under these facts for any schedule of compliance to be placed into a companion enforcement action.” Tr. at 85-86. The District’s water quality standards regulation states, however, that compliance schedules “shall” be included in permits, and the Region does not dispute the applicability of this regu- lation. Yet, the Region insists that this provision merely authorizes, and does not require, the Region to include a compliance schedule for implementation of the LTCP controls in the Final Permit. See Reg. 05 Response at 14 (characterizing the District’s water quality standards as “authorizing” compliance schedules in per- mits); Reg. 05 Reply to NACWA/WWP at 3; Tr. at 92 (“we don’t think that the D.C. regulations can be read to alter the Clean Water Act and the regulations at 122.47[29] that gives [sic] EPA the discretion as to whether or not to place a com- pliance schedule in the permit”). The Region further argues that because the Dis- trict’s Department of Health certified the December 2004 Permit, without condi- tions, pursuant to CWA § 401, the Board should accept the Final Permit as complying with the District’s water quality standards. Reg. 05 Response at 15
29 The regulations at 40 C.F.R. § 122.47 generally allow compliance schedules to be included
in permits.
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730 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
(citing Reg. 05 Ex. 6); Tr. at 96-97; see also Reg. 05 Ex. 6 (Dec. 15, 2004 § 401 certification).
2. Appeal Nos. 07-10 and 07-11
In Apps. 07-10 and 07-11, CBF and WASA, respectively, argue that the
Region should have included, in the Final Permit, a schedule for achieving com- pliance with the total nitrogen limit for Outfall 002 that the Region imposed in that permit. CBF and WASA both have the same primary argument in these ap- peals. They argue that because, as explained above, the CWA grants the District authority to set its own water quality standards and implementation strategies, and because the District’s water quality standards regulation states that compliance schedules “shall” be included in permits, the Region committed clear error by not including a compliance schedule for achievement of the water quality-based efflu- ent limit for nitrogen in the Final Permit. See CBF’s Petition at 7-8; WASA’s 07 Petition at 25; Tr. at 7, 53-54, 61.
CBF additionally argues that, by not including a compliance schedule in the
Final Permit, the Region “ignores the obligation to provide public notice and a comment period for a permit – including a proposed compliance schedule * * *
[and] ignores the publics’ [sic] right to bring a citizen suit against the permittee.” CBF Petition at 11; Tr. at 59. CBF also complains that by not including a compli- ance schedule in the Final Permit, the Region contradicted EPA’s own statements regarding the regulation of nutrient discharges in the Chesapeake Bay watershed. CBF points to a document entitled “NPDES Permitting Approach for Discharges of Nutrients in the Chesapeake Bay Watershed,” which EPA issued in December 2004, along with the Chesapeake Bay partner jurisdictions. That document states, “[w]hen issuing permits with nutrient-based requirements, EPA and the state NPDES permitting authorities * * * agree to: * * * [i]ncorporate compliance schedules, as needed and appropriate, into permits or other enforceable mecha- nisms, consistent with the state tributary strategies, where the state [water quality standards] and CWA NPDES requirements allow for such schedules.” CBF Ex. F (NPDES Permitting Approach), at 2. According to CBF, given the amount of work that WASA would need to do to come into compliance with the new limit,30 a compliance schedule is necessary to ensure that WASA meets the water quality standard. Tr. at 58-60.
30 The effluent limit for total nitrogen is 4,689,000 pounds per year. Reg. 07 Ex. 2 (Final
Permit), at 13. The annual nitrogen discharge goal, which was contained in the January 2003 Permit, was 8.467 million pounds per year. See Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Comments), at 9. The Region recognizes that Blue Plains “is not currently designed to achieve the [new nitrogen] limit on a consistent basis. In order to do so, it is anticipated that the new and/or retrofitted treatment technolo- gies must be installed.” Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 6.
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WASA, on the other hand, complains that, without a compliance schedule,
it is arbitrarily at risk of noncompliance with the Final Permit until it is able to install the technology that would enable Blue Plains to achieve the new total ni- trogen limit. WASA 07 Petition at 23. WASA also asserts that equity requires that a compliance schedule be included in the Final Permit because neighboring states have or will include compliance schedules for their new nitrogen limits in their permits. Id. at 26. In the alternative, WASA argues that the Region abused its discretion by not including a compliance schedule in the Final Permit. Id.
Similar to their position in App. 05-02, NACWA/WWP contend that the
Region was required to include a compliance schedule for achieving the nitrogen limit in the Final Permit, simply because the plain language of DCMR § 1105.9 required the Region to do so. NACWA/WWP argue that because the District has the authority to set its own water quality standards and to set an implementation strategy to achieve them, and the District’s water quality standards regulations clearly require that a compliance schedule be included in a permit when a new water quality-based effluent limitation is established, the Region has no discretion not to include a compliance schedule, or to include one in another instrument instead. NACWA/WWP 07 Brief at 5.
In response to these arguments, the Region asserts, as it did in its response
to WASA’s App. 05-02 petition, that despite the plain language of DCMR
§ 1105.9, the Region does in fact have the discretion to determine whether and where to include a compliance schedule. The Region argues that the District af- firmed that the Region had this discretion when the District certified on January 29, 2007, under CWA § 401, that the December 2006 Draft Permit, which did not contain a compliance schedule, complied with the CWA.31 Reg. 07 Response at
-
Although this certification document stated that “EPA should establish a
schedule for compliance with the nitrogen limit,” Reg. 07 Ex. 5 (Jan. 29, 2007
§ 401 Certification), at 2, the Region argues that this statement is a “considera- tion,” not a “condition,” for approval and furthermore that the District did not specify that the schedule be contained in the Final Permit.32 See Reg. 07 Re- sponse at 25; Tr. at 100. The Region explains its view that including the compli- ance schedule in the Consent Decree instead would allow the Region to be more flexible with respect to interim requirements.33 Reg. 07 Response at 23. The Re-31 At oral argument, the Region affirmed that this § 401 certification letter is the “clearest”
statement it could find that the District agrees with the Region’s interpretation of the District’s water quality standards regulations; in other words, that the District agrees that the EPA has discretion not to include the compliance schedule in the Final Permit. Tr. at 97.
32
As explained in Part II.A above, if the District had imposed a “condition,” this condition
would have been required to have been included in the Final Permit.
33 As explained above, see supra notes 15-17 and accompanying text, the Region has not yet
included a compliance schedule for achieving the nitrogen limit in the Consent Decree or elsewhere.
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gion also states that because the LTCP will likely need to be modified as a result of the new nitrogen limit, it would make sense to use the existing Consent Decree as the vehicle for establishing both the compliance actions and the compliance schedule for meeting the nitrogen limit. Id. at 23-24. Moreover, the Region argues that because there is a provision in the Consent Decree requiring public participa- tion prior to modification of the LTCP, as well as Department of Justice require- ments for public comment prior to entry of any Consent Decree modification, there would be ample opportunity for public comment on a proposed compliance schedule. Id. at 24.
3. Analysis
We begin our analysis of whether the Region was required to include, in the
Final Permit, compliance schedules for the implementation of selected controls in the LTCP and for achieving the new total nitrogen limit by examining the CWA and the language of DCMR § 1105.9. Then, we put the issue of compliance schedules into a broader context by reviewing prior Board case law on compli- ance schedules under the CWA. Ultimately, we conclude, based on the meaning of DCMR § 1105.9, that the Region has a legally binding obligation to include such compliance schedules in the Final Permit.
The CWA charges states with developing their own water quality standards
and setting an implementation strategies to achieve those standards. CWA § 303, 33 U.S.C. § 1313. Once developed, the states must submit proposed water quality standards for EPA approval. CWA § 303(c), 33 U.S.C. § 1313(c). As stated previ- ously, DCMR § 1105.9, which is part of the District’s EPA-approved water qual- ity standards, reads:
When the Director requires a new water quality stan-
dard-based effluent limitation in a discharge permit, the
permittee shall have no more than three (3) years to
achieve compliance with the limitation, unless the permit-
tee can demonstrate that a longer compliance period is
warranted. A compliance schedule shall be included in
the Permit.
DCMR § 1105.9 (emphasis added).34 As EPA conceded at oral argument, the Agency has approved this water quality standard. See Tr. at 93.
34 Although the parties’ interpretations of this regulation differ, all agree that the regulation is
central to our analysis of these issues. See WASA 05 Petition at 22; Reg. 05 Response at 10; CBF Petition at 8; WASA 07 Petition at 24; Reg. 07 Response at 24-25. We have no reason to believe, and the Region has not argued, that the District’s water quality standard regulations would not apply or are in any way invalid.
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We have previously stated that use of the word “shall” generally imposes a
mandatory obligation, while use of the word “may” generally grants discretion. See Julie’s Limousine & Coachworks, Inc., 11 E.A.D. 498, 513 (EAB 2004) (cit- ing Farmer’s & Merchants’ Bank v. Fed. Reserve Bank, 262 U.S. 649, 662-63 (1923)).35 Accordingly, DCMR § 1105.9, on its face, directs the permit issuer to include a compliance schedule in the permit, and not in another enforceable docu- ment. We must nonetheless evaluate the language of DCMR § 1105.9 in the con- text of prior Board case law with respect to compliance schedules under the CWA. The Board’s primary cases regarding compliance schedules, In re Star-Kist Caribe, Inc., 3 E.A.D. 172 (Adm’r 1990) (“Star-Kist I”), modification denied, 4 E.A.D. 33 (EAB 1992) (“Star-Kist II”), further strengthen our view that we can- not ignore the plain language of the regulation, which directs that compliance schedules must be placed in permits.
The Star-Kist cases held that EPA may include a compliance schedule in a
federally issued NPDES permit only when the state water quality standards or implementing regulations contain a provision authorizing such a compliance schedule. Star-Kist I at 175; Star-Kist II at 34. In the Star-Kist cases, the state’s water quality standards did not authorize schedules of compliance. At issue was whether EPA could lawfully include a compliance schedule in Star-Kists’s NPDES permit, despite the absence of an authorizing provision. In concluding that EPA did not have the authority to establish a compliance schedule absent an authorizing provision, the Administrator explained:
Congress intended the [s]tates, not EPA, to become the
proper authorities to define appropriate deadlines for
complying with their own [s]tate law requirements. Just
how stringent such limitations are, or whether limited
forms of relief such as variances, mixing zones, and com-
pliance schedules should be granted are purely matters of
[s]tate law, which EPA has no authority to override.
Star-Kist I, 3 E.A.D. at 182 (second and third emphases added).
Although the factual context of Star Kist differs from that of the present
case, in that it involved a scenario in which compliance schedules were not au-
35 As we have explained in previous cases, “‘[w]hen construing an administrative regulation,
the normal tenets of statutory construction are generally applied.’” In re Howmet Corp., 13 E.A.D. 272, 282 (EAB 2007) (quoting In re Bil-Dry Corp., 9 E.A.D. 575, 595 (EAB 2001)); see also Black & Decker Corp. v. Comm’r, 986 F.2d 60, 65 (4th Cir. 1993). Accordingly, the plain meaning of words is ordinarily the guide to the definition of a regulatory term. See Howmet, 13 E.A.D. at 282; see also Perrin v. United States, 444 U.S. 37, 42 (1979) (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, com- mon meaning.”); T.S. v. Bd. of Educ., 10 F.3d 87, 89 (2d Cir. 1993).
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thorized, Star-Kist I and II nonetheless are instructive because they emphasize that it is the role of the states, not EPA, to determine whether and under what circumstances compliance schedules may be incorporated in NPDES permits. See Star-Kist II, 4 E.A.D. at 36 (“[t]he responsibility of [s]tates under the law to make specific provision for schedules of compliance * * * is unequivocal”). The Star-Kist cases held that when state regulations do not authorize compliance schedules in permits, EPA cannot include them, but when state regulations do authorize such compliance schedules, EPA may include them. It logically follows that when a state regulation, such as DCMR § 1105.9, mandates the inclusion of a compliance schedule, EPA must include one.
Effectively, the Region suggests that we draw a fine line between a state’s
authority to establish compliance schedules, which, under Star-Kist I and II, is authority that the state, not the Region, possesses, and a state’s authority to insist that any such compliance schedules be included in permits, which the Region sug- gests it can disregard. We find it difficult to understand how the Region possesses the latter prerogative when it does not possess the former. The Region nonetheless contends that, under Star-Kist I and II, state regulations can authorize, but may not require, the establishment of compliance schedules in NPDES permits. See Reg. 07 Petition at 23; see also Reg. 05 Petition at 9. In our view, however, sim- ply because the Star-Kist cases contemplated only discretionary provisions does not mean that regulatory provisions mandating compliance schedules may not lawfully exist in some states, as they do in the District. The Region’s argument to the contrary fails because it refuses to recognize that the District’s EPA-approved water quality standards regulation, on its face, requires, rather than merely allows, the inclusion of a compliance schedule in an NPDES permit when new water quality-based effluent standards are established. In other words, in the instance in which the permitting authority believes a compliance schedule is appropriate, it must be in the permit.
At oral argument, the Region relied on 40 C.F.R. § 122.47 to support its
argument that it has discretion to decide whether to include a compliance schedule in the Blue Plains Permit. Specifically, the Region contends that DCMR § 1105.9 gives it discretion to include or not include compliance schedules in the Final Permit because the District’s regulation must be read as being consistent with 40 C.F.R. § 122.47, which makes inclusion of such schedules discretionary. Tr. at 92-93. That regulation, titled “Schedules of compliance,” provides in part that “[t]he permit may, when appropriate, specify a schedule of compliance leading to compliance with CWA and regulations.” 40 C.F.R. § 122.47(a).
The fundamental problem with the Region’s argument is that it ascribes no
meaning whatsoever to that part of DCMR § 1105.9 that makes the inclusion of a compliance schedule in the permit mandatory, not discretionary. The Region’s ar- gument thus fails to acknowledge that state programs may be more stringent than EPA programs. Indeed, section 122.47 applies to state programs through
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DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY 735
40 C.F.R. § 123.25, and section 123.25 expressly provides that “[s]tates are not precluded from omitting or modifying any provisions to impose more stringent requirements.” 40 C.F.R. § 123.25(a). This regulation comports with CWA
§§ 301(b)(1)(C) and 510, which explicitly authorize states to adopt their own water quality standards, effluent limitations, and compliance schedules that may be more stringent than federal law. 33 U.S.C. §§ 1311(b)(1)(C), 1370. Thus, the District was not legally required to mirror the language of 40 C.F.R § 122.47 in adopting DCMR § 1105.9.
In attempting to convince the Board that DCMR § 1105.9 merely grants the
Region the discretion to include compliance schedules in permits, as opposed to requiring them, the Region contends that the District’s section 401 certifications permitted the Region to issue the Final Permit to WASA without the compliance schedules. According to the Region, the District’s section 401 certifications pro- vide the “clearest statement of the District’s own interpretation” of DCMR
§ 1105.9. See Reg. 05 Petition at 15; Reg. 07 Petition at 25-26; Tr. at 97-99. As explained previously, the Region refers to two such certifications: (1) a December 15, 2004 letter from the District’s Department of Health, which approved the in- corporation of the LTCP into the December 2004 Permit without including a com- pliance schedule for the implementation of the selected LTCP controls, Reg. 05 Ex. 6; and (2) a January 20, 2007 letter from the District’s Department of the Environment (“DDOE”), which, inter alia, approved the total nitrogen effluent limit in the December 2006 Draft Permit and did not include a schedule for com- pliance with that limit.36 Reg. 07 Ex. 5. The fact sheet accompanying the Decem- ber 2004 Permit explained that a compliance schedule would be included in the Consent Decree, rather than in the Blue Plains Permit. See Reg. 05 Ex. 6; id. Ex. 4 (Dec. 16, 2004 Fact Sheet), at 15. In the 2007 certification, the District stated:
This certification is based on relevant water quality con-
siderations, as follows: (1) DDOE finds that WASA has
demonstrated that it is not currently capable of achieving
the new limit without new technologies being installed at
the Blue Plains facility[; and] (2) DDOE concurs with
EPA, that EPA should establish a schedule for compli-
ance with the nitrogen limit.
Reg. 07 Ex. 5 (Jan. 20, 2007 § 401 Certification). At the time of the certification, the relevant draft fact sheet stated that the Region intended to include a compli- ance schedule in an enforceable order. See Reg. 07 Ex. 12 (Dec. 14, 2006 Draft
36 As explained previously in Part II.A, the Final Permit included the same nitrogen limit that
appeared in the December 2004 Draft Permit.
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736 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
Fact Sheet), at 5.37
We find these certifications are far from clear or definitive statements of the
District’s interpretation of DCMR § 1105.9. While it is possible to infer that, by its silence in not mentioning that the Blue Plains Permit lacked the appropriate compliance schedules, the District believed that a schedule of compliance was not required in the permit to comply with its water quality standards, we do not take these certifications to be clear statements of the District’s interpretation of its reg- ulations. Rather, we are instructed by our prior holding that a permit issuer “can- not rely exclusively on [a] section 401 certification, at least in a circumstance
-
-
- in which there is a body of information drawing the certification into ques-
tion.” In re Gov’t of D.C. Mun. Separate Storm Sewer Sys., 10 E.A.D 323, 343 (EAB 2002). In this case, we will not allow the section 401 certifications to trump the plain meaning of the District’s water quality standards regulation, which clearly requires compliance schedules for water quality-based effluent limits to be included in NPDES permits.
- in which there is a body of information drawing the certification into ques-
Finally, with respect to the compliance schedule for implementation of the
selected controls in the LTCP, the Region argues that it correctly included that schedule in the Consent Decree, rather than in the Blue Plains Permit, because doing so “fully conform[ed] to the CSO Policy” and thus was “an appropriate ex- ercise of discretion.” Reg. 05 Petition at 11. As we just made clear, DCMR
§ 1105.9 does not grant the Region “discretion” to include a compliance schedule in NPDES permits; rather, it mandates that the Region do so wherever a compli- ance schedule is appropriate.38 Nonetheless, because the CSO Policy has been in- corporated into the CWA, we will examine it next to determine whether the Re- gion’s decision to include the LTCP implementation compliance schedule in the Consent Decree in fact conforms with the CSO Policy and, if so, whether the CSO Policy then is in conflict with DCMR § 1105.9.As the Region explains, the Phase II permitting provisions of the CSO Pol-
icy provide that once the LTCP controls have been selected, unless the permittee can comply with all the requirements of the Phase II permit, the permitting au- thority should include a schedule for implementation of the plan in “an appropri- ate enforceable mechanism.” 59 Fed. Reg. 18,588, 18,686 (Apr. 19, 1994). The Region then explains that the Consent Decree is an appropriate enforceable mech- anism, in this case, because there is no dispute that WASA cannot immediately comply, and “[an] enforcement action was underway prior to issuance of the mod-37 As the Region explained at oral argument, it previously had proposed including the compli-
-
ance schedule in the August 2006 Draft Permit. Tr. at 98; see also Reg. 07 Ex. 10 (Aug. 18, 2006 Draft Fact Sheet), at 5.
38 See infra note 42 (explaining circumstances where incorporation of a compliance schedule
into a permit may not be lawful).
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DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY 737
ified permit and the compliance schedule for LTCP implementation was negoti- ated by the parties and embodied in a Consent Decree signed by the permittee and lodged with the Court on the same day the permit was issued.” Reg. 05 Petition at
-
Moreover, with respect to “major permittees” that cannot comply, the CSO
Policy states that the “compliance schedules should be placed in a judicial order.” 59 Fed. Reg. at 18,696.We agree with the Region that its decision to include a compliance schedule
in the Consent Decree conforms with the CSO Policy. On the other hand, the CSO Policy does not prohibit the inclusion of compliance schedules in permits. As NACWA/WWP observe in their non-party briefs, the fact that the CSO Policy states that, for major permittees, “the compliance schedule should be placed in a judicial order,” 59 Fed. Reg. at 18,696, does not preclude contemporaneous de- ployment of a compliance schedule in a permit, especially when a schedule is required under the state water quality regulations. NACWA/WWP 05 Brief at 7. We thus continue to find fault with the Region’s decision not to include a compli- ance schedule for implementation of Blue Plains’s LTCP controls in the Final Permit.39 Additionally, as the Region’s advocate eventually conceded at oral argu- ment when asked if it would be possible to include a compliance schedule in both places, “I suppose it’s possible * * * .” Tr. at 89. The CSO Policy’s, and indeed the Region’s, stated preference for placing a compliance schedule in a judicial order cannot take precedence over the District’s authority to define appropriate deadlines and mechanisms for complying with its own state law requirements.4039 We base this finding solely upon the text of the District’s water quality standards regulation,
which requires the inclusion of compliance schedules in permits for new water quality-based effluent limitations. The Region observed at oral argument that it “would be very surprised” if EPA approved regulations in other states that contain mandatory compliance schedule provisions. Tr. at 93-93.
40
In its Supplemental Response, the Region appears to back away from the concession it made
at oral argument and now contends that a compliance schedule could not have been placed in both the Consent Decree and the Blue Plains Permit because compliance schedules are components of effluent limits. As such, the Region claims that if a compliance schedule were placed in the Blue Plains Permit, WASA would no longer be in violation of any effluent limitations. See Reg. Supplemental Response at
- We first note that although we asked the Region, at oral argument, to provide additional information
with respect to whether the LTCP meets the requirements of 40 C.F.R. § 122.4(d), we did not at any point ask for a “clarification” of the Region’s position with respect to whether a compliance schedule could be included both in the Consent Decree and in the permit. Moreover, neither EPA regulations nor the Board’s Practice Manual provide for post-argument briefing of the sort offered here by the Region. Therefore, the Region’s “clarification” in this regard was unsolicited and we need not consider the Region’s Supplemental Response to the extent it presents this additional “clarification.” We further observe that the Region provided little support for its newly minted position in its Supplemental Re- sponse, and that CBF challenged both the filing of the Supplemental Response as well as the substance of the Region’s argument on this point. See CBF’s Objection to Supplemental Response (Jan. 4, 2008). In any event, whatever the implications of including a compliance schedule in the Final Permit, the state regulation must be followed; there is no conflict with the CSO Policy, which simply states a preference, not a requirement, for placing schedules of compliance in a judicial order.VOLUME 13738 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
See CWA §§ 301(b)(1)(C), 510, 33 U.S.C. §§ 1311(b)(1)(C), 1370; 40 C.F.R.
§ 123.25.
In light of the above, we find that the Region’s failures to include in the
Final Permit compliance schedules for the implementation of the selected controls in the LTCP and the achievement of the total nitrogen effluent limit are clear errors of law.41 Accordingly, we remand the Final Permit’s conditions related to these requirements to allow the Region to develop such compliance schedules and include them in the Final Permit.42 As a practical matter, we note that the Region does maintain some discretion in the exact manner in which it establishes compli- ance schedules. As explained previously, the Region has expressed concerns that incorporating compliance schedules into the Blue Plains Permit may not give it the flexibility it needs for making future modifications to the LTCP, for example. In remanding the Final Permit for inclusion of the compliance schedules, we do not intend to diminish these practical concerns, and encourage the Region to bear these concerns in mind as it crafts the specific language of the modified Blue Plains Permit.
C. Total Nitrogen Effluent Limitation
In App. 07-11, WASA seeks Board review of the Region’s decision to mod-
ify the Blue Plains Permit to include a total nitrogen effluent limitation of 4,689,000 pounds per year. WASA argues that: (1) the nitrogen limit is based on an erroneous allocation developed outside the rulemaking and permit modifica- tion processes; (2) the Region failed to acknowledge deficiencies in the allocation
41 Because we have found that DCMR § 1105.9 applies in this case and the plain language of
that regulation controls, we decline to address the other arguments raised by the petitioners, namely: (1) whether the CSO Policy alone (absent DCMR § 1105.9) would require the inclusion of a compli- ance schedule in the permit under this set of facts; (2) whether there is an obligation to provide public notice and a comment period for compliance schedules; and (3) what the effect of having compliance schedules only in the Consent Decree would have on WASA’s CWA compliance status or future en- forcement actions.
42 We note that schedules for compliance with water quality standards that were promulgated
prior to July 1, 1977, are not appropriate. See Office of Water, U.S. EPA, NPDES Permit Writers’ Manual ch. 8.1.4 (Dec. 1996) (“The determination of whether a compliance schedule to meet water quality-based effluent limits is permissible depends on when the applicable [s]tate water quality stan- dards were initially promulgated. Because [s]tates were required to have water quality standards promulgated by July 1, 1977, and because facilities were supposed to have had the opportunity to comply with the standards, compliance schedules are not allowed if the [s]tate water quality standards were promulgated before July 1, 1977.”). The Region left open at oral argument whether any of the District water quality standards were promulgated prior to July 1, 1977. Tr. at 87 (“I don’t know, frankly, whether all of these standards would have been pre-July 1, 1977.”). To the extent that any of the relevant water quality standards were promulgated prior to July 1, 1977, the Region should not include in the compliance schedule in the Final Permit the related LTCP requirements. However, the Region should clearly document its decisionmaking so that there is a clear record of any circumstances in which compliance schedules are not placed in the Final Permit on this basis.
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DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY 739
process that formed the basis for the limit; (3) the Region failed to respond ade- quately to WASA’s “significant comment” on this issue; and (4) the imposition of a nitrogen limit is premature. For the reasons explained below, we decline to grant review of the Final Permit on these bases and, as such, dismiss WASA’s petition in App. 07-11 with respect to these issues.
1. Background
a. Chesapeake Bay Agreements
To understand WASA’s arguments in App. 07-11, it first is helpful to pro-
vide some background about the various agreements relating to discharges into the Chesapeake Bay. These agreements directly influenced the Region’s decision to include the 4,689,000 pounds-per-year nitrogen limit in the Final Permit.
In 1983, with the intent of coordinating efforts to improve water quality in
the Chesapeake Bay watershed, EPA, the District, Maryland, Pennsylvania, and the Chesapeake Bay Commission (collectively, the “Chesapeake Executive Coun- cil”43) signed what is known as the Chesapeake Bay Agreement (“Bay Agree- ment”). Compliance with the Bay Agreement is enforceable under section 117(g) of the CWA.44 The Bay Agreement was revised in 1987, 1992, and again in 2000. In accordance with the 2000 revision (the “Chesapeake 2000 Agreement”), EPA developed ambient water quality criteria for the Chesapeake Bay and its tidal tributaries to achieve and maintain the water quality conditions necessary to pro-
43 The CWA refers to the signatories to the Chesapeake Bay Agreement as the “Chesapeake
Executive Council.” CWA § 117(a)(5), 33 U.S.C. § 1267(a)(5).
44 CWA § 117(g) provides that EPA shall, in coordination with the Chesapeake Executive
Council “ensure that management plans are developed and implementation is begun by signatories to the Chesapeake Bay Agreement to achieve and maintain:
(A) the nutrient goals of the Chesapeake Bay Agreement for the quantity
of nitrogen and phosphorous entering the Chesapeake Bay and its
watershed;
(B) the water quality requirements necessary to restore living resources
in the Chesapeake Bay ecosystem;
(C) the Chesapeake Bay Basinwide Toxins Reduction and Prevention
Strategy goal * * * ;
(D) habitat restoration, protection, creation, and enhancement goals es-
tablished by Chesapeake Bay Agreement signatories * * * ; and
(E) the restoration, protection, creation, and enhancement goals estab-
lished by the Chesapeake Bay Agreement signatories for living re-
sources associated with the Chesapeake Bay ecosystem.
CWA § 117(g)(1), 33 U.S.C. § 1267(g)(1).
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740 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
tect the Bay. See Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 5; U.S. EPA, EPA-903-R-03-002, Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries (Apr. 2003) (the “Bay Criteria”). The Bay Criteria serve as the regional nutrient gui- dance applicable to the Chesapeake Bay and its tidal tributaries.
The District, along with Maryland, Delaware, and Virginia, subsequently
adopted changes to their state water quality standards and refined aquatic life uses for tidal Chesapeake Bay waters, which EPA approved as consistent with the Bay Criteria and the CWA. See Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 1 (stating that the Bay Criteria have been incorporated into the District’s water quality stan- dards); id. Exs. 21-23 (letters from Region approving revised water quality stan- dards for Virginia, the District, and Maryland). Based on the Bay Criteria and state water quality standards, EPA and the Bay states (Virginia, Maryland, Dela- ware, New York, Pennsylvania, and the District) then established cap load alloca- tions45 for nitrogen, phosphorus, and sediment. Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 5. The process used to develop these allocations is set forth in a docu- ment prepared by the Region’s Chesapeake Bay Program Office. See Reg. 07 Ex. 15 (Chesapeake Bay Program Office, U.S. EPA Region 3, Setting and Allo- cating the Chesapeake Bay Basin Nutrient and Sediment Loads (Dec. 2003) (“Al- location Document”). The states were charged with developing their own tributary strategies to achieve the agreed-upon allocations.46 The District, Maryland, and Virginia each allocated some of their nitrogen cap loading to Blue Plains. To- gether, they allocated 4,689,000 pounds per year of total nitrogen.47 See Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 6.
45 Cap load allocations are allocations that the Bay states established for the pollutants nitro-
gen, phosphorus, and sediment for each of the major Chesapeake Bay basins, with those allocations subdivided for each state with jurisdiction over that basin. See Reg. 07 Ex. 16 (Region’s Memo to File re: Basis of Proposed Nitrogen Limits for Blue Plains), at 1.
46 Maryland and Virginia adopted strategies for Blue Plains that, once fully implemented, EPA
has deemed sufficient to achieve the nitrogen cap loads described in the Allocation Document. Id. EPA determined that the District’s strategy was not sufficient to achieve the nitrogen cap loading allocation, however, and therefore recalculated the appropriate allocation for the District’s contribution to Blue Plains, consistent with the nitrogen cap loading to the District. Id. at 2. In the summer of 2006, Maryland adjusted its tributary strategies by making small reductions to its nitrogen allocation for Blue Plains, and designating these allocated loadings to another wastewater treatment plant. Id. Subse- quently, EPA recalculated the appropriate effluent limits for Blue Plains based on the allocations from the modified Maryland tributary strategy, the Virginia tributary strategy, and the recalculated allowa- ble nitrogen loading for the District portion of Blue Plains. This combined allowable loading adds up to the total allowable nitrogen loading for the entire Blue Plains facility. Id.
47 The District’s portion of the Blue Plains allocation is 2,115,000 pounds per year. Maryland’s
portion is 1,993,000 pounds per year. The Virginia portion is 581,000 pounds per year. See Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 6.
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DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY 741
b. The Permit Provision at Issue
The nitrogen limit appears in Part IV.E of the Final Permit.48 As explained
in Part II.A above, prior to the Region’s proposal of the August 2006 Draft Per- mit, the Blue Plains Permit contained a voluntary nitrogen goal, rather than a ni- trogen limit. With the August 2006 Draft Permit, the Region proposed an interim nitrogen limit of 8,600,000 pounds per year. At that time, the Region explained that in order to reach the target allocation of 4,689,000 pounds per year set forth in the Allocation Document, new process equipment would need to be installed at Blue Plains. The Region explained that because the target allocation was not im- mediately achievable, the higher interim limit would apply until the needed equip- ment became operational. See Reg. 07 Ex. 10 (Aug. 18, 2006 Draft Fact Sheet), at
-
In addition to the interim limit, the August 2006 Draft Permit contained an
interim total nitrogen goal of 5,800,000 pounds per year. Id. During the no- tice-and-comment period on the August 2006 Draft Permit, the Region received several objections to the proposed interim nitrogen limit. WASA argued that the interim limit was flawed and generally too stringent. See Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Comments) at 3-6. Other commenters held an opposing view and argued that, to comply with the CWA, the Region should have required im- mediate compliance with the 4,689,000 pounds-per-year allocation for nitrogen at Blue Plains. See Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Comments), at 12-13.After considering these comments, the Region proposed the December 2006
Draft Permit, which eliminated the interim limit and goal and instead included only a total nitrogen effluent limit of 4,689,000 pounds per year, reflecting the Blue Plains allocation. Reg. 07 Ex. 12 (Dec. 14, 2006 Draft Fact Sheet), at 5; Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Comments), at 13. In doing so, the Region stated:In addition to meeting the EPA Bay [C]riteria, the pro- posed modification to the total nitrogen limit complies48 Part IV.E of the Final Permit states:
1. The District of Columbia, as a signatory to the 1987 Chesapeake Bay Agreement, the 1992 Amendments to the Chesapeake Bay Agreement and the Chesapeake 2000 Agreement, supports the goal of reducing the discharge of nutrients to the Chesapeake Bay. Since 1997, WASA has employed nitrogen removal at its Blue Plains WWTP. Under the permit issued January 24, 2003, WASA has been operating under the voluntary goal of meeting an annual total nitrogen mass load of 8,467,2000 [sic] pounds per year. 2. Effective upon permit issuance, the total nitrogen discharge limit from the facility shall be 4,689,000 pounds per year.
Reg. 07 Ex. 2 (Final Permit), at 52.
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742 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
with 40 CFR Section 122.4(d)[, requiring] compliance
with water quality standards for all the affected states. It
also meets the requirements of 40 CFR Section 122.44(d)
Water Quality Standards. It can be concluded that an an-
nual nitrogen load at Blue Plains which exceeds the
4.689 million pounds per year mass load has a reasonable
potential to cause or contribute to an exceedance of the
state water quality standards.
Reg. 07 Ex. 12 (Dec. 14, 2006 Draft Fact Sheet), at 5. During the comment period for the December 2006 Draft Permit, WASA again objected to the nitrogen limit, raising arguments similar to the ones it now raises before the Board in App. 07-11. The Region acknowledged these comments, yet determined that, despite WASA’s comments, the 4,689,000 pounds-per-year total nitrogen limit was ap- propriate, and thus the Region included it in the Final Permit. See Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Comments), at 14-22; Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 6.
2. Discussion
WASA continues to object to the nitrogen limit that the Region decided to
include in the Final Permit and seeks Board review of that decision. Establish- ment of a nitrogen effluent limit in a permit is inherently a technical issue. The Board assigns a heavy burden to petitioners seeking review of issues that are es- sentially technical in nature. In re City of Moscow, 10 E.A.D. 135, 124 (EAB 2001). It is well established that:
“[W]hen presented with technical issues, we look to deter-
mine whether the record demonstrates that the [permit is-
suer] duly considered the issues raised in the comments
and whether the approach ultimately adopted by the [per-
mit issuer] is rational in light of all of the information in
the record. If we are satisfied that the [permit issuer] gave
due consideration to comments received and adopted an
approach in the final permit decision that is rational and
supportable, we typically will defer to the [permit is-
suer’s] position. Clear error or reviewable exercise of dis-
cretion are not established simply because the petitioner
presents a different opinion or alternative theory regard-
ing a technical matter, particularly when the alternative
theory is unsubstantiated.”
In re Scituate Wastewater Treatment Plant, 12 E.A.D. 708, 718 (EAB) (quoting In re MCN Oil & Gas Co., UIC Appeal No. 02-03, at 25-26 n.21 (EAB Sept. 4, 2002) (Order Denying Review)), appeal dismissed per stipulation of parties, No.
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DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY 743
06-1817 (1st Cir. 2006); see also In re Gov’t of D.C. Mun. Separate Storm Sewer Sys., 10 E.A.D. 323, 334 (EAB 2002); In re NE Hub Partners, L.P., 7 E.A.D. 561, 568 (EAB 1998), review denied sub nom. Penn Fuel Gas, Inc. v. EPA, 185 F.3d 862 (3d Cir. 1999).
In addition, petitioners seeking Board review of a permit provision must not
only demonstrate that they raised the issue during the public notice and comment period, see 40 C.F.R. § 124.13, but they must also explain, in their petitions, why the permit issuer’s response was clearly erroneous. We previously have explained:
[M]ere repetition on appeal of comments already ad-
dressed by the permit issuer does not meet [the Board’s]
standard of review. Instead, to obtain review of a permit
decision, petitioners must include specific information in
support of their allegations to demonstrate why the permit
issuer’s response to the petitioner’s comments below (i.e.,
the permit issuer’s basis for its permit decision) is clearly
erroneous, an abuse of permitting discretion, or otherwise
warrants review.
Scituate, 12 E.A.D. at 733 (citing In re Newmont Nev. Energy Inv., LLC, 12 E.A.D. 429, 470-72, 487-88 (EAB 2005)); In re City of Marlborough, 12 E.A.D. 235, 240 (EAB 2005), appeal dismissed for lack of jurisdiction, No. 05-2022 (1st Cir. 2005); In re Phelps Dodge Corp., 10 E.A.D 460, 508-09, 518-19 (EAB 2002).49 With these procedural requirements in mind, we turn to WASA’s arguments.
a. Challenges to Nitrogen Limit Based on Allegedly
Erroneous Nitrogen Allocation
First, WASA argues that the nitrogen limit “is based upon an erroneous allo-
cation developed by third parties outside the rulemaking and permit modification process[es].”50 WASA Petition 07-11, at 12. In support of this argument, WASA
49 WASA did not acknowledge this obligation for obtaining Board review of the Final Permit
decision. Instead, in its petition, WASA largely reiterated the comments that it submitted during the notice-and-comment period on the December 2006 Draft Permit, without further explanation.
50 Although WASA uses this statement for its subheading introducing its first argument on this
topic, the text that follows does not at all address why it would have been incorrect to base the nitro- gen limit on the Allocation Document. WASA merely argues why it believes that the allocation is incorrect.
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criticizes the Allocation Document as misapplying its stated goals.51 To illustrate, WASA states that a correct application of the Allocation Document’s goals would have led to a larger percent nitrogen reduction requirement for Pennsylvania’s Susquehanna River basin than the percent nitrogen reduction requirement for the District. Id. at 13. The preliminary nitrogen allocation for Pennsylvania’s Susque- hanna River called for dischargers to that basin to achieve nitrogen reductions totaling 55.4% over the baseline, while the District’s nitrogen load reduction re- quirement was set at 61.6%.52 According to WASA, these allocations were based on the incorrect assumption that the District would benefit equally with Maryland and Virginia from the Bay’s recovery, whereas WASA asserts that the District receives no more benefit from improved water quality in the main stem of the Bay than does Pennsylvania. Further, WASA argues that the decision to reduce the District’s nitrogen allocation to bring the allocations in line with the Bay-wide cap load, without explanation or justification for the reductions, compounded the erro- neous application of the Allocation Document’s goals. Id. at 14-15.
In response to these same comments submitted during the public comment
period, the Region stated:
Nutrient reductions are driven largely by water quality in
the tidal portions of the bay watershed. The allocation of
the allowable loadings is driven by a complex set of facts
which include, but are not limited to, geography, land use
and proximity to the Bay. The process for allocating these
loadings is described above and in the Bay Allocation
Document. The Bay Parties agree that jurisdictions that
have tidal waters in the Bay watershed will benefit more
from the reduction of nutrients. The waters of the Poto-
mac River under the jurisdiction of the District of Colum-
bia are tidal. Furthermore, the nutrient reductions pre-
scribed for the Bay not only benefit the Chesapeake Bay
but also benefit the tidal Potomac River which has exper-
ienced historical and at times very significant algal
problems from excessive nutrients.
51 WASA cites the goals listed in the Allocation Document. According to the Allocation Docu-
ment, the following three “guiding principles” (i.e., what WASA refers to as “goals”) were used in allocating the cap loads to the individual states and tributaries: (1) basins that contribute the most to the problem must do the most to solve the problem; (2) states that benefit the most from the Chesa- peake Bay must do more; and (3) all reductions in nutrient loads are credited toward achieving final assigned loads. Allocation Document at 93.
52 The baseline was calculated based on the projected nitrogen load from human activity in
2010 without any point or nonpoint source controls in place. Allocation Document at 94-95.
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DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY 745
Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Comments), at 20. The Region further stated:
[T]he Bay program did not arbitrarily reduce the District’s
nitrogen allocation * * * . The District voluntarily agreed
to the lower cap as did each of the tidal jurisdictions. As
explained above, EPA disagrees with WASA’s assertion
that equity can be expressed simply as a matter of percent
reduction. It is much more complex. For example, the al-
located loading for the District portion of the Blue Plains
facility is a concentration equivalent of 4.6 [milligrams
per liter] total nitrogen. The allocated loading to Blue
Plains from Maryland and Virginia is a concentration
equivalent of 4 [milligrams per liter] total nitrogen.
Therefore, on a concentration basis, Maryland and Vir-
ginia have allocated less to Blue Plains than the [District].
Based on this analysis, one could argue that the District
was allocated too much loading with respect to Maryland
and Virginia.
Id. at 20-21. As previously explained, to prevail on its claims, WASA must do more than merely reiterate the comments it submitted during the public no- tice-and-comment period. WASA must specifically demonstrate why the Region’s response to its comments warrants review. WASA’s arguments with respect to the fairness of the allocation merely repeat the comments it provided to the Region on January 18, 2007. Compare WASA 07 Petition at 12-15 with WASA 07 Ex. B (WASA comments), at 7-8. WASA fails to address, or even acknowledge, the Region’s response in its petition. See WASA 07 Petition at 12-15. Because WASA has done no more than reiterate the comments it made in this regard dur- ing the public comment process, we deny review of the permit based on WASA’s first argument.53
b. Challenges Based on Alleged Deficiencies in Allocation
Process
WASA’s second argument is that the Region “failed to acknowledge or ad-
dress deficiencies in the allocation process that are the basis for the nitrogen limit in the Blue Plains Permit.” WASA 07 Petition at 15. WASA argues that, in setting the nitrogen limit in the Final Permit, the Region erred by “simply assum[ing]” that the Allocation Document was a valid basis for establishing and imposing a
53 In addition, to the extent that WASA argues that the allocation process, rather than the nitro-
gen limit itself, was erroneous, we also reject that argument as outside of our jurisdiction, as explained in Part III.C.2.b below.
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nitrogen limit in the Final Permit. Id. at 15-16. WASA contends that the Region had an obligation to consider the following additional factors in setting the nitro- gen limit, but failed to do so: (1) the water quality benefit and fairness of the allocations; (2) the financial burden of WASA’s CSO control obligations on Dis- trict ratepayers; (3) the complexities involved in controlling nitrogen levels and the technological limits faced by the District; (4) the fact that federal grant fund- ing for nitrogen control is available in Virginia and Maryland but not in the Dis- trict; and (5) WASA’s inability to trade for nitrogen credits to comply with the limit.54 Id. at 16. The Region claims in response that none of these factors is rele- vant to setting effluent limits. Reg. 07 Response at 30.
As a preliminary matter, WASA did not provide any legal authority for its
assertion that the Region was “obligated” to consider any of these factors.55 With respect to the first factor, WASA does not explain what it means by a failure to consider “water quality benefit.” It continues to assert, however, that it was treated unfairly during the allocation process. Reg. 07 Petition at 17-18. To the extent that WASA is challenging the Allocation Document as the basis for establishing the nitrogen effluent limitation, rather than the effluent limitation itself, we reject that challenge as outside our jurisdiction.56 See 40 C.F.R. § 124.19 (“any person * * * may petition the [Board] to review a condition of the permit decision”) (emphasis added). As we have explained previously:
[Waste load allocations in TMDLs]57 are not permit limits
per se; rather they still require translation into permit lim-
its * * * . Of note here is that while section
122.44(d)(1)(vii) prescribes minimum requirements for
developing [water quality-based effluent limits], it does
not prescribe detailed procedures for their development.
The lack of a detailed procedure for establishing permit
limits from available [waste load allocations] was in-
tended to give “the permitting authority the flexibility to
determine the appropriate procedures for developing
water quality-based effluent limits.” 54 Fed. Reg. 23,868,
23,879 (June 2, 1989).
54 WASA also raised these issues during the comment period. See WASA 07 Ex. B.
55As we explained above, a petitioner’s claims must be substantiated. In re Scituate Waste-
water Treatment Plant, 12 E.A.D. 708, 718 (EAB), appeal dismissed per stipulation of parties, No. 06-1817 (1st Cir. 2006).
56 As explained previously, the Allocation Document is based on the Bay Criteria and state
water quality standards.
57 A waste load allocation is “[t]he portion of a receiving water’s loading capacity that is allo-
cated to one of its existing or future point sources of pollution.” 40 C.F.R. § 130.2(h).
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In re City of Moscow, 10 E.A.D. 135, 146-47 (EAB 2001); see also In re Teck Cominco Alaska Inc., 11 E.A.D. 457, 484 (EAB 2004) (“‘[o]ur jurisdiction is lim- ited to reviewing whether the Region, as permit issuer, included a condition in the permit that properly implements the [water quality] standard’”) (quoting In re City of Hollywood, 5 E.A.D. 157, 176 (EAB 1994)).
WASA additionally argues that “the Region exceeded its authority by
adopting these allocations without notice and comment [and] without public par- ticipation * * * .” WASA 07 Petition at 19. This statement is incorrect. As ex- plained previously, the December 2006 Draft Permit, containing the alloca- tion-based nitrogen limit at issue, was indeed subject to notice and comment, even if the allocation process itself was not.58 WASA has provided no basis, factual or legal, for us to find that the Region committed clear error with respect to any issue within the scope of our review relating to the adoption of a total nitrogen effluent limitation based on the Allocation Document. We therefore decline to review the Final Permit on these grounds.
The remaining four factors cited by WASA relate to cost or technology con-
cerns. The Region, in both its Response to Comments and its Response Brief, correctly cited a body of case law that holds that cost and technological considera- tions are not appropriate factors to consider under the CWA when setting water quality-based effluent limits. See Reg. 07 Response at 31-32; Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Comments), at 15 (citing In re Scituate Wastewater Treat- ment Plant, 12 E.A.D. 708, 733-35 (EAB) (finding that EPA did not commit clear error by not considering cost of compliance when establishing effluent limits), appeal dismissed per stipulation of parties, No. 06-1817 (1st Cir. 2006)); see also In re City of Moscow, 10 E.A.D. 135, 168 (EAB 2001); In re New England Plat- ing Co., 9 E.A.D. 726, 738 (EAB 2001) (finding that CWA does not make excep- tions for cost or technological feasibility); In re Town of Hopedale, NPDES Ap- peal No. 00-04, at 24 (EAB Feb. 13, 2001) (Order Denying Review); accord Defenders of Wildlife v. Browner, 191 F.3d 1159, 1163 (9th Cir. 1999) (holding that EPA is obligated to set water quality standards without regard to practicabil- ity); U.S. Steel Corp. v. Train, 556 F.2d 822, 838 (7th Cir. 1977) (finding “states are free to force technology” and “[i]f the states wish to achieve better water qual- ity, they may [do so], even at the cost of economic and social dislocations”)).
WASA’s petition fails to acknowledge any of these cases or provide any
legal basis whatsoever for its argument that the Region should have considered these factors when developing the nitrogen limit. As a procedural matter, we de- cline review because WASA failed to address the cases cited in the Region’s re- sponse. See Scituate, 12 E.A.D. at 718. As a substantive matter, in accordance
58 We reiterate that we have no authority to review the permit on the ground that the allocation
process itself was not subject to notice and comment.
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with the cases cited by the Region, we also find that WASA has not met its bur- den of demonstrating that the Region committed clear error by not considering the cost and technology factors described in its petition. We therefore deny review of the Final Permit on these grounds.
c. Challenges to Region’s Response to Comments
WASA’s third argument is that “the Region failed to respond to WASA’s
significant comment” and, more generally, that “the Region never intended to con- sider WASA’s comments on the proposed nitrogen limit.” WASA 07 Petition at 20-21. While it is not entirely clear which “significant comment” WASA is refer- encing, it appears that WASA has three basic complaints in this regard: (1) the Region did not respond to WASA’s comments regarding the alleged unfairness of the relative contributions of the Susquehanna River basin and the Potomac River basin; (2) in response to WASA’s comment that, in the Allocation Document, the District was erroneously treated as a tidal jurisdiction, the Region suggests that the limit is intended to protect both the Bay and the Potomac, contrary to what is set forth in the Allocation Document; and (3) WASA disagrees with the Region’s response that, if anything, the District’s allocation may have been too large in relation to the allocations given to Virginia and Maryland. WASA 07 Petition at 20-21.
To the extent that WASA asserts that the Region committed clear error be-
cause it did not respond to WASA’s comments, we find this statement to be incor- rect. The Region dedicated ten pages of its Response to Comments document to WASA’s comments. See Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Comments), at 14-23. Specifically, the Region addressed WASA’s first two complaints on page 20 of its Response to Comments document.59 To the extent that WASA argues the Region’s response is inadequate because it disagrees with the Region’s position, we note that “clear error or reviewable exercise of discretion are not established simply because the petitioner presents a different opinion or alternative theory regarding a technical matter.” Scituate, 12 E.A.D. at 718. Here, we defer to the Region’s technical judgment. Although WASA has shown that it disagrees with the Region’s position, it has failed to show a clear error of law or fact, or an important policy consideration, that would warrant the Board’s review of the ni- trogen limit.
d. Challenges to Timing of Imposition of Nitrogen Limit
WASA’s fourth and final argument is that the Region’s imposition of the
nitrogen limit was premature. WASA 07 Petition at 21. According to WASA, it is
59 See Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Comments), at 20 (quoted in Part III.C.2.a
above).
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currently in the process of developing a Total Nitrogen/Wet Weather Plan, which will “address critical issues related to WASA’s ability to cost-effectively comply with the proposed nitrogen limit while meeting its existing wet weather CSO con- trol obligations.” Id. WASA asserts that the “Region’s response to WASA’s com- ments offers no rational justification or explanation for proceeding to include the limit in the Final Permit before WASA completed and submitted its Plan,” and again complains of the costs to ratepayers attributable to adding the nitrogen limit. Id. at 22. According to WASA, the Region has known that WASA is in the pro- cess of developing a Total Nitrogen/Wet Weather Plan and, until certain issues related to the plan are resolved, that complying with the nitrogen limit would be too costly. Id. at 21-22.
In its Response to Comments, the Region explained that “EPA has been
working with WASA, and will continue to do so to identify and resolve the issues related to the development and implementation of a plan, including a schedule to achieve compliance with the nitrogen limit. In the meantime, EPA is committed to moving forward with the goals of the Bay Agreement, and is responding to the EPA-approved revisions to the [water quality standards] of the affected states which reflect the Bay [C]riteria.” Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Com- ments), at 22. Again, we note that “clear error or reviewable exercise of discretion are not established simply because the petitioner presents a different opinion or alternative theory regarding a technical matter.” In re Scituate Wastewater Treat- ment Plant, 12 E.A.D. 708, 718 (EAB), appeal dismissed per stipulation of par- ties, No. 06-1817 (1st Cir. 2006). Moreover, as we previously explained, the Re- gion need not consider cost concerns when developing an effluent limit. WASA has neither demonstrated that the Region’s response was inadequate, nor has it provided any legal basis for us to find that the Region must postpone setting the nitrogen limit before WASA’s development of its Total Nitrogen/Wet Weather Plan reaches completion. We therefore find that WASA has failed to establish clear error in this regard and decline to review the Final Permit on this basis.
In light of the foregoing, we dismiss WASA’s App. 07-11 with respect to
the issues set forth above. 60
D. Water Quality-Based Effluent Requirements for CSOs
In App. 07-12, FOE/SC challenge Part III.E of the Final Permit, which sets
forth “Water Quality-Based Requirements for CSOs.” The Region changed this provision when it issued the Final Permit, so that, unlike the August 2006 Draft
60 This Part III.C covers all issues raised in Appeal No. 07-11, except for the compliance
schedule issue, which we discussed previously in Part III.B, supra.
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Permit,61 the Final Permit no longer included a general provision ensuring compli- ance with the District’s water quality standards. FOE/SC argue that this modifica- tion constituted a clear error of law because: (1) the Region did not provide ade- quate notice and opportunity to comment on the final language, FOE/SC Petition at 9-10; (2) the final language violates the antibacksliding provisions of the CWA and EPA rules, id. at 11-12; and (3) the final language does not contain effluent limitations necessary to meet and “ensure” compliance with the District’s water quality standards, as required by CWA § 301(b)(1)(C), 33 U.S.C.
§ 1311(b)(1)(C), and 40 C.F.R. § 122.4(d). FOE/SC Petition at 12-15. The Region opposes FOE/SC’s appeal, and WASA, as an intervener in this appeal, generally supports the Region’s opposition. We agree with FOE/SC that the Region did not provide adequate notice and opportunity to comment on the final language relat- ing to compliance with water quality standards for CSOs, and we therefore re- mand the permit to the Region on this basis.
Because of our decision remanding the Final Permit on procedural grounds,
we need not decide FOE/SC’s other two arguments, which are substantive. None- theless, in the interests of expediting the resolution of this long overdue permit, we offer some observations on these two issues in the hopes that the Region can address our concerns on remand.
1. The Permit Provision at Issue
To understand FOE/SC’s arguments, we first must examine in some detail
the Final Permit provision at issue, as well as its many previous iterations. As previously explained, NPDES permits must include effluent limitations necessary to meet water quality standards established under state law. See CWA
§ 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C). Further, EPA regulations prohibit is- suing a permit “when imposition of conditions cannot ensure compliance with the applicable water quality requirements.” 40 C.F.R. § 122.4(d).
a. The 1997 Permit
The 1997 Permit contained the following language limiting discharges from
CSOs:
Consistent with the Clean Water Act, section
301(b)(1)(C), the permittee must not discharge in excess
61 As explained in Part II.A above, the Region proposed a subsequent draft permit on Decem-
ber 14, 2006. This draft dealt solely with the final nitrogen limit, however. The Region responded to comments on the August 2006 Draft Permit and the December 2006 Draft Permit at the same time, in the same document. See Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Comments).
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of any limitation necessary to meet the water quality stan-
dards established pursuant to District of Columbia law.
1997 Permit Part III.2(c)(2).62
b. The January 2003 Modified Permit
In issuing the January 2003 Permit, the Region changed the provision speci-
fying “water quality-based requirements for CSOs” by supplementing the narra- tive effluent limit from the 1997 Permit, set forth in the first paragraph, and by adding a second paragraph, as follows:
1. Consistent with the Clean Water Act, section 301(b)(1)(C), the
permittee must not discharge in excess of any limitation neces-
sary to meet the water quality standards established pursuant to
District of Columbia law. The permittee shall not discharge any
pollutant at a level that causes or contributes to an in-stream
excursion above narrative criteria developed or adopted as part
of the [District’s] water quality standards or otherwise prevents
existing designated uses.
2. Permittee shall not discharge pollutants in amounts exceeding
Waste Load Allocations (WLAs) set forth in the [TMDLs] for
BOD (approved by the District of Columbia on December 14,
2001) and TSS (issued by EPA on March 1, 2002).
January 2003 Permit Part III.C.63 The Region explained that it included language about the TMDLs in the January 2003 Permit because by that time the relevant TMDLs had been issued. Reg. 07 Response at 36; see supra note 12 (discussing TMDLs).
c. The March 2004 Draft Permit
The March 2004 Draft Permit contained several modifications to reflect that WASA had completed its LTCP, and the permit thus had become a “Phase II
62 At the time of the issuance of the 1997 Permit, the permit was a “Phase I” permit under the
CSO Policy because WASA had not yet developed a LTCP. See Reg. 05 Ex. 4 (Dec. 16, 2004 Fact Sheet), at 14-15; 59 Fed. Reg. 18,688, 18,696 (Apr. 19, 1994) (explaining difference between Phase I and Phase II permits). Under the CSO Policy, Phase I permits must require, inter alia, compliance with applicable state water quality standards, “expressed in the form of a narrative limitation.” 59 Fed. Reg. at 18,696. The Region sent a copy of the 1997 Permit to the Board on December 20, 2007, and it now is part of the record of this case.
63 The Region sent a copy of the January 2003 Permit to the Board on December 20, 2007, and
it now is part of the record of this case.
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permit” under the CSO Policy. In this iteration, the Region proposed to change the relevant water quality provision to read as follows:
Except as otherwise specified below, the permittee shall
not discharge any pollutant at a level which will cause,
have the reasonable potential to cause, or contribute to an
excursion above District of Columbia water quality stan-
dards, including numeric or narrative criteria for water
quality.
Reg. 05 Ex. 5 (Dec. 16, 2004 Response to Comments), at 8 (referencing March 2004 Draft Permit pt. III.E.1).
FOE/SC’s comments on the March 2004 Draft Permit stated that they sup-
ported the new version, with the exception of the introductory clause (“Except as otherwise specified below”). FOE/SC asserted that there would be no possible ba- sis, consistent with the CWA, for ever allowing discharges that would cause or contribute to violations of water quality standards. See id. at 8. WASA, on the other hand, objected to the inclusion of this provision altogether, arguing that its inclusion was inconsistent with the CSO Policy.64 See id. at 20.
In responding to FOE/SC’s comments, the Region appeared to agree with
the arguments contained therein. The Region agreed that it should delete the intro- ductory clause and explained that “the permit must contain requirements neces- sary to achieve [water quality standards], including state narrative criteria, pursu- ant to 33 U.S.C. § 1311(b)(1)(C) and 40 C.F.R. § 122.4(d) and 122.44(d). * * * As in all NPDES permits, the discharge is required to achieve any more stringent limits to meet D.C. water quality standards.” Reg. 05 Ex. 5 (Dec. 16, 2004 Re- sponse to Comments), at 8. The Region additionally stated:
EPA has enumerated DC’s narrative [water quality stan-
dards] as narrative [water quality-based effluent limits]
because EPA finds that, at the time of permit issuance
[prior to full implementation of the LTCP], the CSO dis-
charges are likely to cause, have the reasonable potential
to cause, or contribute to non-attainment of these narra-
tive [water quality standards]. This finding conforms to
the CSO Policy for Phase 2 permits because the finding is
64 WASA’s comment was “[t]he draft permit fails to conform to CWA § 402(q) [the section
incorporating the CSO Policy into the CWA] because it contains the general water quality standards compliance requirement in Section III.E.1.” WASA did not elaborate further on this statement. Based on its arguments in this appeal, we presume WASA believed that, under the CSO Policy, once a permit becomes a Phase II permit, it no longer should contain a general water quality standards com- pliance requirement such as the one proposed by the Region.
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the one required by 40 C.F.R. 122.44(d)(1). The CSO Pol-
icy cites to this regulation at 59 FR 18688, at page 18696.
Id. at 20.65 The Region explained further that, in its view, the requirements for Phase II permits set forth in the CSO Policy “do[] not appear to supplant the pro- visions of CWA Section 301(b)(1)(C),” noting the use of the CSO Policy’s charac- terization of its requirements as “minimum” requirements. Id. at 21.
d. The December 2004 Permit
When the Region issued the December 2004 Permit, it changed the “Water
Quality-Based Requirements for CSOs” provision significantly to read as follows:
Discharges shall be of sufficient quality that surface wa-
ters shall be free from substances in amounts or combina-
tions that do any of the following: settle to form objec-
tionable deposits; float as debris, scum, oil, or other
matter to form nuisances; produce objectionable odor,
color, taste or turbidity; cause injury to, are toxic to, or
produce undesirable or nuisance aquatic life or result in
the dominance of nuisance species; or impair the biologi-
cal community that naturally occurs in the waters or de-
pends on the waters for its survival and propagation.
Reg. 05 Ex. 3 (Dec. 2004 Permit), at 49. The Region also included numeric efflu- ent limits “derived from and consistent with” the applicable TMDLs. Id. at 49-51.
Both FOE/SC and WASA objected to this new language and filed petitions
for review with the Board. The petitions were stayed for a number of months while the parties attempted to negotiate a settlement of their disputes. When the negotiations failed, the Region filed a Notice of Partial Withdrawal of the Modi- fied Permit, withdrawing the above-quoted provision and stating its intent to pre- pare a new draft permit addressing the withdrawn permit terms. See Respondent’s Notice of Partial Withdrawal of Modified Permit, NPDES App. Nos. 05-01 &
65 The part of the CSO Policy to which the Region referred here is the part that lists the re-
quirements for Phase II permits. It states, in part, “The Phase II permit should contain: * * * Water quality-based effluent limits under 40 CFR. 122.44(d)(1) and 122.44(k), requiring, at a minimum, compliance with, no later than the date allowed under the [s]tate’s [water quality standards], the numeric performance standards for the selected CSO controls, based on average design conditions specifying at least one of the following: * * * performance standards and requirements that are con- sistent with II.C.4.b of the Policy.” 59 Fed. Reg. 18,688, 18,696 (Apr. 19, 1994). CSO Policy
§ II.C.4.b allows permittees to demonstrate that their selected control programs are adequate to meet the water quality-based requirements of the CWA. Id. at 18,693.
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05-02 (Aug. 10, 2006).66
e. The August 2006 Draft Permit
The August 2006 Draft Permit contained the following language relating to
water quality-based requirements for CSO discharges (at Part III.E.1):
The [LTCP] performance standards contained in Part III
Section C.2.A.3 through .9 [of the Draft Permit] are the
water quality-based effluent limits for CSO discharges. In
addition, until such time as all of the selected CSO con-
trols set forth in the LTCP have been placed into opera-
tion, and the Permittee so certifies to EPA, in writing,
consistent with [CWA § ] 301(b)(1)(C), the permittee
must not discharge in excess of any limitation necessary
to meet the water quality standards established pursuant to
District of Columbia law.
Reg. 07 Ex. 9 (Aug. 2006 Draft Permit), at 49. The Region explained its rationale for this modification as follows:
While [the] performance standards are immediately effec-
tive, EPA recognizes that the Permittee is not likely to
achieve the performance standards until the LTCP is fully
implemented in accordance with the schedule contained
in the Consent Decree * * * . Therefore, EPA is propos-
ing to add language similar to that which appeared in the
previously effective permit (issued January 22, 1997)
* * * . In the interim period before the LTCP is fully im-
plemented, this general provision is included because the
CSO controls that are the LTCP performance standards
will not have been constructed and placed in operation
until the LTCP is fully implemented. The Permittee’s ob-
ligations under this general language would lapse when
the permittee fully implements the LTCP according to the
referenced performance standards, and the CSO controls
are placed into operation * * * .
Reg. 07 Ex. 10 (Aug. 18, 2006 Draft Fact Sheet), at 3 (emphasis added).
66 By this time, the United States Court of Appeals for the District of Columbia Circuit had
remanded the TMDLs for TSS and BOD. See supra note 12.
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FOE/SC objected to the portion of the proposed provision that would termi-
nate the prohibition on violating water quality standards when the selected con- trols in the LTCP have been placed into operation. They argued that this addi- tional language did not ensure compliance with the District’s water quality standards and thus created nitrogen requirements that were less stringent than those in the previous permit, in violation of the antibacksliding provisions of the CWA. Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Comments), at 10.
The Region responded to FOE/SC’s comment as follows:
EPA believes that the specific performance standards ex-
pressed as water quality-based effluent limits do not con-
stitute backsliding. On the contrary, these provisions, as
opposed to the very general prohibition against discharg-
ing in excess of water quality standards, are more pro-
scriptive and stringent. EPA has concluded that imple-
mentation of the LTCP will not preclude compliance with
[water quality standards]. Therefore, use of the LTCP per-
formance standards as [water quality-based effluent lim-
its] does not violate 122.4(d), which precludes issuance of
a permit that cannot ensure compliance with [water qual-
ity standards] of all affected states. Moreover, the use of
the performance standards is consistent with and con-
forms to the requirements of the 1994 CSO Policy as it
pertains to [water quality standards] in Phase II CSO per-
mits. If it is determined, based upon post-construction
monitoring, that the LTCP controls fail to achieve [water
quality standards], then EPA intends, consistent with the
CSO Policy, to require the permittee to take additional
steps to achieve [water quality standards] and shall mod-
ify or reissue the permit accordingly and use an additional
enforceable mechanism as necessary.
Id. at 10-11.
WASA also objected to the new permit language, but for different reasons. WASA commented as follows:
WASA continues its objection to [this part of the permit]
* * * . WASA believes that this provision should be re-
moved in its entirety, as both the existing and proposed
water quality standards compliance requirements fail to
conform with Section IV.B.2.c of EPA’s CSO Control
Policy, and therefore, violate Section 402(q) of the Clean
Water Act because they are water quality-based require-
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ments that are not authorized by the Act. It is not neces-
sary to include Section III.E.1 [the provision at issue] in
the permit because the permit includes the performance
standards specifically called for in Section IV.B.2.c of the
CSO Policy. Part III.E.1 unfairly exposes WASA to per-
mit non-compliance.
Id. at 6 (quoting WASA’s comments).67
The Region responded to WASA’s comment as follows:
The use of the LTCP performance standards as the water
quality-based effluent limits * * * is consistent with the
CSO Policy. * * * In addition to setting forth the per-
formance standards in the permit * * * , it is appropriate
for EPA to indicate that these are the new water qual-
ity-based effluent limits that apply to the discharges.
Given that there are now specific [water quality-based ef-
fluent limits], EPA believes that a general requirement to
comply with water quality standards is unnecessary and
redundant. Therefore, that portion of the provision has
been deleted. * * * The LTCP is anticipated to result in
compliance with water quality standards.
Id at 6-7.
f. The Final Permit
In issuing the Final Permit on April 5, 2007, the Region, without first sub-
mitting the change for public notice and comment, modified Part III.E.1 to read: “The [LTCP] performance standards contained in Part III Section C.2.A.3 through
.9 [of the Final Permit] are the water quality-based effluent limits for CSO dis- charges.” Reg. 07 Ex. 2 (Final Permit), at 45. Essentially, the Region summarily removed the second sentence of the permit condition as it had appeared in the August 2006 Draft Permit (the general provision), such that the LTCP would pro- vide the sole water quality-based effluent limits for CSO discharges from Blue Plains. The fact sheet accompanying the Final Permit reflected the Region’s re- sponse to WASA’s comments in this regard:
Upon review of the comments as well as applicable law
and policy, EPA has determined that the LTCP perform-
67 CSO Policy § IV.B.2.c specifies the water quality-based effluent limits that Phase II permits
must contain.
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DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY 757
ance standards are the appropriate [water quality-based
effluent limits] for these discharges. The use of the LTCP
performance standards as the [water quality-based efflu-
ent limits] for CSO discharges is consistent with the CSO
Policy * * * . In addition to setting forth the performance
standards in the permit * * * , it is appropriate for EPA
to indicate that these are the water quality-based effluent
limits that apply to the discharges. Given that there are
now specific [water quality-based effluent limits], EPA
believes that a general requirement to comply with water
quality standards is unnecessary, redundant and would not
as clearly specify the permittee’s obligations. Therefore,
that portion of the proposed provision has been deleted.
Reg. 07 Ex. 3 (April 5, 2007 Fact Sheet), at 3-4. The Region further stated that it understood that WASA “may” not be able to comply with the performance stan- dards until the LTCP is fully implemented and noted that the Consent Decree places WASA on a schedule to achieve compliance. Id. at 4. The Region also explained that if it is determined, based upon post-construction monitoring, that the LTCP controls, once implemented, fail to achieve water quality standards, then it intends to require WASA to take additional steps to achieve those stan- dards, modify or reissue the Blue Plains Permit, and use an additional enforceable mechanism as necessary. Id.
2. Failure to Provide Adequate Notice and Comment
As mentioned above, FOE/SC’s first argument is procedural. They argue
that the Region committed clear error by failing to provide adequate notice and opportunity to comment on the changes to the Final Permit provision relating to compliance with water quality standards for CSO discharges. As explained below, we agree with FOE/SC and remand the Final Permit on this basis.
a. The Parties’ Arguments
FOE/SC argue that the Region’s deletion of the general requirement to com-
ply with water quality standards prior to full implementation of the LTCP and certification thereof, without providing the public an opportunity to comment on the change, was unlawful because the language in the Final Permit deviated mate- rially and substantially from the language in the August 2006 Draft Permit, in a way that was not reasonably foreseeable. FOE/SC Petition at 9-10. FOE/SC observe:
Since 1997, the NPDES permit * * * has contained a
narrative prohibition protecting waters from “discharge in
excess of any limitation necessary to meet the water qual-
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ity standards established pursuant to District of Columbia
law.” In its August 16, [sic] 2006 proposal to modify the
existing permit, the Region proposed to add language
modifying the water quality standards provision so that its
applicability would terminate some time in the future, af-
ter WASA has certified to the Region that it completed
specific actions relating to [its LTCP] for [CSOs]. How-
ever, in a sharp departure from its proposal, the Region
instead deleted the existing water quality-based protec-
tions, effective immediately.
FOE/SC Reply Brief at 3 (citations omitted). FOE/SC added that “a proposal to terminate standards protection immediately is radically different than one to ter- minate such protection [twenty] years or more in the future (the expected imple- mentation time frame for the LTCP).” Id. at 6. FOE/SC assert that had they known the Region was considering such a change, they would have objected to it, but, because the Region neither issued a new draft permit nor reopened the comment period, they and the rest of the public were deprived of such an opportunity. FOE/SC Petition at 9-10. FOE/SC characterize the modification to the permit term as an unlawful “surprise switcheroo” that FOE/SC could not have reasonably anticipated. FOE/SC Reply Brief at 2, 6-7.
The Region and WASA disagree with this characterization of events. They
respond that FOE/SC did, in fact, have ample opportunity to comment on the Fi- nal Permit provision and assert that because this provision has been “on the table” throughout rounds of comment periods, FOE/SC have been able to make their views heard throughout this process. See Reg. 07 Response at 41; WASA’s 07 Response at 13. According to both the Region and WASA, the new language was foreseeable. See Reg. 07 Response at 40; WASA’s 07 Response at 12-13. Accord- ing to the Region, FOE/SC have “advanced the same basic objections to all the other proposed language: (1) that the language violates antibacksliding; and (2) that it will not be known whether the LTCP controls will ensure [water quality standards] compliance until after post-construction monitoring.” Reg. 07 Response at 41; see also WASA Response at 13-14. Accordingly, they argue FOE/SC had ample opportunity to comment. Reg. 07 Response at 41; WASA Response at 13.
b. Discussion
Under the Administrative Procedure Act, EPA must provide the public with
notice and opportunity to comment before it issues NPDES permits. 5 U.S.C.
§ 553(b)-(c); see 40 C.F.R.§§ 124.6(d), .10(a)(1)(ii); see also NRDC v. EPA, 863 F.2d 1420, 1429 (9th Cir. 1988) (applying the notice and comment requirement to NPDES permitting procedures); NRDC v. EPA, 279 F.3d 1180, 1186 (9th Cir. 2002) (same). A final permit need not be identical to the corresponding draft per-
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DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY 759
mit and, indeed “[t]hat would be antithetical to the whole concept of notice and comment.” NRDC v. EPA, 279 F.3d 1180, 1186 (9th Cir. 2002). It is, in fact, “‘the expectation that the final rules will be somewhat different and improved from the rules originally proposed by the agency.’” Id. (quoting Trans-Pac. Freight Confer- ence v. Fed. Mar. Comm’n, 650 F.2d 1235, 1249 (D.C. Cir. 1980)); see also In re Indeck-Elwood, LLC, 13 E.A.D. 126, 145 (EAB 2006); In re Amoco Oil Co., 4 E.A.D. 954, 980 (EAB 1993); In re Chem-Sec. Sys., Inc., 2 E.A.D. 804, 807 n.11 (Adm’r 1989). Thus, the “‘law does not require that every alteration in a pro- posed rule be reissued for notice and comment.’” NRDC, 279 F.3d at 1186 (quot- ing First Am. Discount Corp. v. Commodity Futures Trading Comm’n, 222 F.3d 1008, 1015 (D.C. Cir. 2000)).
However, a final permit that differs from a proposed permit and is not sub-
ject to public notice and comment must be a “logical outgrowth” of the proposed permit. See NRDC, 279 F.3d at 1186; see also In re Old Dominion Elec. Corp., 3 E.A.D., 779, 797 (Adm’r 1992) (“[t]he revised permit by all accounts is a logical outgrowth of the notice and comment process”). To determine whether a final permit is a “logical outgrowth” of a draft permit:
The essential inquiry focuses on whether interested par-
ties reasonably could have anticipated the final rulemak-
ing from the draft permit. In determining this, one of the
most salient questions is whether a new round of notice
and comment would provide the first opportunity for in-
terested parties to offer comments that could persuade the
agency to modify its rule.
NRDC, 279 F.3d at 1186 (internal quotation marks and citations omitted).
EPA rules and previous Board decisions reflect this standard. The regula-
tions advise that when comments submitted during the comment period raise “substantial new questions” about a permit, it may be appropriate for the permit issuer to reopen the comment period. See 40 C.F.R. § 124.14(b).68 Although the reopening of the comment period is discretionary, and the Board often defers to
68 Specifically, 40 C.F.R. § 124.14(b) states:
If any data[,] information[,] or arguments submitted during the public
comment period * * * appear to raise substantial new questions con-
cerning a permit, the Regional Administrator may take one or more of
the following actions:
(1)Prepare a new draft permit, appropriately modified * * * ;
(2)Prepare a revised statement of basis * * * , a fact sheet or revised
fact sheet * * * and reopen the comment period * * * ; or
Continued
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760 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
the permit issuer’s discretion in deciding not to reopen a comment period, we nonetheless consider changes to draft permits on a case-by-case basis and, de- pending on the significance of the change, may determine that reopening the com- ment period is warranted. See, e.g., Indeck, 13 E.A.D. at 145-47 (remanding when the permit issuer did not provide an opportunity for public comment on a signifi- cant addition to the permit); In re Amoco Oil Co., 4 E.A.D. 954, 981 (EAB 1993) (remanding permit and directing Region to reopen public comment period when Region failed to provide public with opportunity to prepare an adequately in- formed challenge to a permit change); In re GSX Servs. of S.C., Inc., 4 E.A.D. 451, 467 (EAB 1992) (remanding and directing Region to reopen public comment period when public was not given opportunity to comment on significant permit changes); see also Old Dominion, 3 E.A.D. at 797 (explaining that despite the discretionary wording of the regulations, “there may be times when a revised per- mit differs so greatly from the draft version that additional public comment is required”).
To determine whether the changes that appear in the Final Permit raise
“substantial new questions” or fail to meet the “logical outgrowth” standard, which are fact-based inquiries, we must consider the evolution of the permit condition at issue, and the Region’s corresponding explanatory statements. As explained previ- ously, the 1997 Permit, which was drafted before the development of WASA’s LTCP, set forth a general prohibition requiring CSO discharges to meet the Dis- trict’s water quality standards. 1997 Permit pt. III.2(c)(2). By the time the August 2006 Draft Permit was published for comment, the Region had been through a number of rounds of notice and comment, particularly with respect to the provi- sion at issue. Throughout that time period, the Region consistently held the posi- tion that, under the CWA, the permit must ensure compliance with water quality standards at all times. After the LTCP was approved, the Region determined that the CSO controls set forth in the LTCP would be adequate to ensure attainment of the District’s water quality standards. See Reg. 07 Ex. 10 (Aug. 18, 2006 Draft Fact Sheet), at 3; Reg. 07 Response at 37-38. Accordingly, the August 2006 Draft Permit stated that the LTCP performance standards would become the water qual- ity-based effluent limits for CSO charges after full LTCP implementation and cer- tification that it is consistent with CWA § 301(b)(1)(C). The Region also recog- nized that the CSO controls set forth in the LTCP would not be operational immediately and therefore included a general prohibition against discharging in excess of limitations necessary to meet the District’s water quality standards until
(continued)
(3)Reopen or extend the comment period * * * to give interested per-
sons an opportunity to comment on the information or arguments
submitted.
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DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY 761
the requisite CSO controls were operational.69 See Reg. 07 Ex. 9 (Aug. 2006 Draft Permit) at 49; Reg. 07 Ex. 10 (Aug. 18, 2006 Draft Fact Sheet).
In drafting the water quality-based requirements provision in this manner,
the Region appeared to hold the view that, because of the length of time required to implement the LTCP, the permit would need to cover two time periods: (1) the time period leading up to full implementation of the LTCP (the so-called “interim period”), during which the general prohibition would apply;70 and (2) the time period after full LTCP implementation. By including the general prohibition for the interim period, the Region explained that it was intending to ensure that the Blue Plains Permit contained requirements necessary to achieve water quality standards both before and after implementation of the LTCP, in compliance with CWA § 301(b)(1)(C). Reg. 07 Ex. 10 (Aug. 18, 2006 Draft Fact Sheet), at 3. This explanation is consistent with the Region’s previous statements that “the permit must contain requirements necessary to achieve [water quality standards],” Reg. 05 Ex. 5 (Dec. 16, 2004 Response to Comments), at 8, and “at the time of permit issuance [prior to full implementation of the LTCP], the CSO discharges are likely to cause, have the reasonable potential to cause, or contribute to non-attainment of * * * narrative [water quality standards],” id. at 20. It also is consistent with the Region’s prior statement, in its Response to Comments, that including a general provision relating to the interim period conforms to the CSO Policy and to 40 C.F.R. § 122.44(d)(1), which requires permits to contain effluent limitations to achieve water quality standards.71 See id.
In removing the general prohibition that applied during the interim period,
the Region appears to have changed significantly its underlying interpretation of the CWA and CSO Policy. As explained above, the Region previously appeared to hold the position that both CWA § 301(b)(1)(C) and the CSO Policy compelled the inclusion of a general provision requiring compliance with water quality stan- dards during the interim period. But in the fact sheet for the Final Permit, the Region stated that “[u]pon review of the comments as well as applicable law and policy,” it had determined that the LTCP performance standards in the permit72 were sufficient to serve as the only water quality-based effluent limits in the per-
69 This general prohibition was worded similarly to the prohibition set forth in the pre-LTCP
1997 Permit.
70 As explained in Part II.A above, this “interim period” could last up to twenty years, the
amount of time that the Consent Decree allows for full implementation of the LTCP.
71 The CSO Policy refers to 40 C.F.R. § 122.44(d)(1). See 59 Fed. Reg. at 18,696 (“[t]he Phase
II permit should contain * * * water quality-based effluent limits under 40 C.F.R. § 122.44(d)(1)”).
72 These LTCP performance standards are located at Final Permit Part III.C.2.A.3-.9.
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762 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
mit.73 Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 4. The Region asserted that making such a change to the Blue Plains Permit is appropriate because it is con- sistent with the CSO Policy, and that the previous language covering the interim period was “unnecessary, redundant, and would not clearly specify the permittee’s obligations.”74 Id.
We find that, based on the Region’s previous statements interpreting the
CWA, the CSO Policy, and the District’s water quality standards, FOE/SC could not have reasonably anticipated that the Region would delete from the Final Per- mit the general prohibition covering the interim period. We hold that the new language in the Final Permit was not a logical outgrowth of the language in the previous draft and, accordingly, FOE/SC were denied the opportunity to provide meaningful comments on the issue. The Region’s previous statements indicated it believed that the LTCP, when fully implemented, would be adequate to achieve water quality standards,75 but those statements never indicated a belief that the LTCP would ensure such achievement during the interim period. In fact, in re- sponse to WASA’s comments that the CSO Policy did not call for any water qual- ity standards provision besides the LTCP, the Region explained that both the CWA and the CSO Policy required such a provision. In removing the general provision covering the interim period and calling it “redundant” and “duplicative,” the Region appears to have done a complete about-face with respect to its inter- pretation of the requirements of the CWA and the CSO Policy.76 Such an about-face is not a logical outgrowth of the original proposal. Cf. Envtl. Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005) (explaining that federal courts “have refused to allow agencies to use the rulemaking process to pull a surprise switcheroo on regulated entities”).
The Region and WASA argue that the omission of the language covering
the interim period in the Final Permit was foreseeable by FOE/SC, and, even
73 In eliminating the provision requiring compliance with water quality standards during the
interim period, however, the Region continues to recognize that WASA will not achieve water quality standards until the LTCP is complete, based on the twenty-year schedule provided in the Consent Decree. Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 4.
74 WASA, for its part, notes that it does not believe the language is duplicative. It believes
including the general prohibition covering the interim period would be fundamentally inconsistent with the CSO Policy. See Tr. at 124-25.
75 FOE/SC historically have disputed the Region’s position that the LTCP, even when fully
implemented, would ensure compliance with water quality standards, but nonetheless appeared satis- fied with the general provision covering the interim period. See Reg. 07 Ex. 4 (Apr. 5, 2007 Response to Comments), at 10. At this time we need not determine whether the LTCP is adequate to ensure achievement with water quality standards.
76 We note that we are not deciding, at this time, which of the Region’s interpretations is cor-
rect under the CWA.
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DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY 763
given the opportunity to comment, they would have advanced the same objections that they had advanced with respect to the other proposed language, namely that the language constitutes backsliding and that the LTCP does not properly ensure compliance with the District’s water quality control standards. Reg. 07 Response at 41; WASA Response at 13-14. The Region and WASA fail to acknowledge, however, that FOE/SC’s previous comments in that regard applied only to the post-LTCP period, not to the interim period. FOE/SC have not had the opportu- nity to comment on the effect that removing the general prohibition would have on water quality standards compliance during the interim period. It is true that the Region’s revision to the permit provision is consistent with past public comments that WASA had made, yet it is the history of the Region’s thinking, not WASA’s, that is important here. It is well settled that “EPA ‘cannot bootstrap notice from a comment,’” Envtl. Integrity Project, 425 F.3d at 996 (quoting Int’l Union v. Mine Safety & Health Admin., 407 F.3d 1250, 1261 (D.C. Cir. 2005)), and FOE/SC should not be expected to “divine [the agency’s] unspoken thoughts.” Id.
At oral argument the Board asked the parties several questions about the
effect of this provision – specifically, what, if any, ramifications the deletion of the general prohibition during the interim period would have. See, e.g., Tr. at 33, 42, 69, 131, 133. None of the parties agreed on the effect that removal of the provision might or might not have, and the Region was unable to point us to any written analysis in the record that examined the effect of deleting this provision. Tr. at 131-32. It strikes us as odd that something so fundamental as the effect of removing the general provision during the interim period was subject to such con- fusion at the time of oral argument. We thus find ourselves agreeing with FOE/SC’s comment that “all of these questions about the water quality standards provision [raised during oral argument], most of which EPA did not address be- low, shows [sic] very graphically why we need notice and comment on this issue.” Tr. at 141.
WASA additionally argues that, to prevail on its notice-and-comment argu-
ment, FOE/SC would have to show prejudice from the claimed procedural viola- tion, and they have not done so.77 See WASA’s 07 Petition at 13-14. In support of this position, WASA cites Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). This case, however, specifically states that “where the agency has entirely failed to comply with notice-and-comment requirements, and the agency has offered no persuasive evidence that possible objections to its final rules have been given suf- ficient consideration,” a petitioner need not show prejudice to prevail. Shell Oil, 950 F.2d at 752. Moreover, courts have found that when an agency fails to com- ply with notice-and-comment procedures, it is inappropriate to place the burden of demonstrating prejudice on the challenger (here, the petitioner). See, e.g., Mc- Louth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1323-24 (D.C. Cir. 1988);
77 The Region has not advanced this argument.
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764 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
see also U.S. Steel Corp v. EPA, 595 F.2d 207, 214 (5th Cir. 1979) (holding that when an agency fails to comply with notice-and-comment rules, courts cannot apply the harmless error doctrine unless absence of prejudice is clear). Because we find that the Region failed to provide adequate public notice and opportunity to comment on the proposed permit terms, we will not place the burden on FOE/SC to demonstrate prejudice in this case. Further, we do not find that the Region’s failure to comply with notice-and-comment requirements was harmless error that would render FOE/SC’s procedural argument moot.
In sum, we find that the Region’s legal rationale for excluding the general
prohibition from the Final Permit differs greatly from its stated rationale for in- cluding such a provision in previous drafts of the Blue Plains Permit. Accord- ingly, we hold that it was clear error for the Region to have made the modification to the water quality standards provision without reopening the comment period. On this basis, we remand the Final Permit on this issue. The Region must either include the general provision covering the interim period in the Final Permit78 or reopen the comment period and provide the public the opportunity to comment on this issue and then provide a response to any such comments received.79
3. Antibacksliding and Compliance with Water Quality Standards
Despite our remand of the Final Permit on procedural grounds, we offer, in
an effort to assist the parties in moving this long-overdue permit to resolution, the following observations on the two substantive water quality standards issues we have not reached. FOE/SC’s two substantive arguments, which pertain to an-
78 If the general prohibition covering the interim period is merely “redundant,” as the Region
asserts, there appears to be no legal reason why it could not continue to be included in the Final Permit. At oral argument, the only rationale that the Region could provide for not including a provi- sion it deems redundant was that “it could create confusion about what the permittee’s obligations exactly are.” Tr. at 114. We are unpersuaded that this rationale warrants our taking a different ap- proach here.
79 If, following appropriate notice and comment, the Region decides to retain the deletion of
the general prohibition during the interim period, it must provide, in its response to comments, an adequate rationale for the deletion that comports with the CWA, particularly § 301(b)(1)(C), § 402(o), and EPA rules. As we explained in Amoco Oil Company, “[b]y so doing, the Region ensures that interested parties have an opportunity to adequately prepare a petition for review and that any changes in the draft permit are subject to effective review on the merits under 40 C.F.R. § 124.19.” In re Amoco Oil Co., 4 E.A.D. 954, 980 (EAB 1993). The Board has, in the past, remanded permits because they have not provided such an adequate rationale. See, e.g., In re City of Marlborough, 12 E.A.D. 235, 245 (EAB 2005); In re Austin Powder Co., 6 E.A.D. 713, 720 (EAB 1997); In re Ash Grove Cement Co., 7 E.A.D. 387, 417-18 (EAB 1997); Amoco Oil, 4 E.A.D. at 980. While, as previously explained, we need not at this time decide FOE/SC’s substantive claims that the Final Permit violates the CWA’s antibacksliding provision under § 402(o), and does not properly ensure achievement of the District’s water quality standards under CWA § 301(b)(1)(C) and 40 C.F.R. § 122.4(d), we note that we have questions, based upon the parties’ briefs and presentations at oral argument, as to whether the record currently provides an adequate explanation of the Final Permit’s compliance with these provisions.
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DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY 765
tibacksliding and failure to “ensure” compliance with water quality standards, are related. The 1997 Permit contained a prohibition against discharging in violation of the District’s water quality standards, but the Final Permit contains only a re- quirement to implement and comply with the controls specified in the LTCP. Be- cause FOE/SC do not believe that the LTCP ensures achievement of water quality standards, they believe that the Final Permit violates both CWA § 301(b)(1)(C), which requires permits to ensure compliance with water quality standards, and CWA § 402(o), which prohibits permits from containing effluent limits that are less stringent than those contained in a source’s previous permit.
The Region’s arguments in response to FOE/SC’s concerns seem to rely
heavily on its current interpretation of the CSO Policy, which it asserts does, in fact, allow for the replacement of a general narrative prohibition against dis- charges in violation of water quality standards with a requirement to implement an LTCP. See Reg. 07 Response at 45-46; Tr. at 122-24. WASA takes this counterargument one step further and asserts that “[w]e don’t believe that you can persuasively argue that the deletion [of the general prohibition] * * * is consis- tent with section 402(q) of the Clean Water Act, while at the same time asserting that it violates the antibacksliding provisions of section 402(o).” Tr. at 40. Neither the Region nor WASA, however, have adequately explained how this interpreta- tion of the CSO Policy squares with the antibacksliding provisions in § 401(o).
In addition, one long-standing principle is that permits must “ensure” com-
pliance with water quality requirements. See 40 C.F.R. § 122.4(d); In re City of Marlborough, 12 E.A.D. 235, 250 (EAB 2005) (finding that “possible” compli- ance is not the same as “ensuring” compliance); In re Gov’t of D.C. Mun. Separate Storm Sewer Sys., 10 E.A.D. 323, 342 (EAB 2002) (finding that “reasonably capable” does not comport with the “ensure” standard). This principle would con- trol our approach to FOE/SC’s two substantive issues, and it should direct the Region on remand.
The fact sheet accompanying the Final Permit states merely that
“[i]mplementation of the LTCP is anticipated to result in compliance with water quality standards.” Reg. 07 Ex. 3 (Apr. 5, 2007 Fact Sheet), at 4 (emphasis ad- ded). The Region has identified documents drafted by it and the District that, in its view, reach the conclusion that the LTCP will, in fact, ensure compliance. See Reg. 07 Petition at 46; Tr. at 132; Reg. 07 Exs. 6-8, 17. However, Exhibit 17, a letter from the District to the Region, dates back to 2003, and focuses, at least in part, on TMDLs that were remanded by the United States Court of Appeals for the District of Columbia Circuit in 2004. Exhibit 8 is a November 29, 2004 mem- orandum to file by an unidentified individual, written long before the modifica- tions in question were made, which also relies at least in part on the now-remanded TMDLs. That memorandum further states, in part, that “EPA has
-
-
- concluded that implementation of the LTCP is likely to protect [water qual-
ity standards] based on current available information,” Reg. 07 Ex. 8, at 2 (empha-VOLUME 13766 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
- concluded that implementation of the LTCP is likely to protect [water qual-
-
sis added), and that “EPA concludes that for Rock Creek and the Potomac River, the studies and modeling in the LTCP demonstrate that the remaining [CSOs] after implementation of the LTCP will not preclude attainment of the District’s water quality standards in accordance with the CSO Policy,” id. at 5 (emphasis added), thus calling into question other parts of the memorandum that seem to suggest unequivocally that LTCP implementation will meet water quality stan- dards. See id. at 4 (“The above analysis, combined with EPA’s review of the stud- ies and modeling in the LTCP and TMDLs demonstrate that for the CSO load portion to the receiving waters, the overflows remaining after implementation of the LTCP will meet the DC [water quality standards].”) In any event, we have not located any record evidence that the Region adopted this document as part of its decisionmaking rationale or explained how this analysis is valid despite the re- mand of the TMDLs. We need not, at this time, determine whether these docu- ments provide sufficient evidence that the LTCP, once fully implemented, will ensure compliance with water quality standards. We do note, however, that, at a minimum, these documents do not explain how the Final Permit will ensure com- pliance during the interim period, and the Region must explain, on the record, how the Blue Plains Permit will comply with CWA § 301(b)(1)(C) and EPA rules.
IV. CONCLUSION
For the foregoing reasons, we remand the Final Permit in part and deny
review of the Final Permit in part. On remand, the Region must modify the Final Permit so that it provides compliance schedules, consistent with DCMR § 1105.9, for implementation of the selected controls in WASA’s LTCP80 and achievement of the total nitrogen effluent limit. The Region also must modify the Final Permit to include a general provision ensuring compliance with District water quality standards during the interim period or reopen the comment period and provide opportunity for public comment on this issue and then provide an adequate re- sponse to any such comments received.81 WASA’s petition for review in App. 07-11 is denied in all respects not related to the establishment of a compliance
80 As explained in note 43 above, remand in this respect is limited to LTCP requirements
related to water quality standards promulgated after July 1, 1977.
81 An administrative appeal of the Region’s determination on remand is required to exhaust
administrative remedies under 40 C.F.R. § 124.19(f)(1). Any such appeal shall be limited to the issues considered on remand and any modifications made to the Blue Plains Permit as a result of the remand. With respect to the two substantive arguments raised by FOE/SC at pages 11-15 of their Petition for Review, of which we did not reach the merits here, we specifically preserve FOE/SC’s right to raise these arguments again in an appeal of the determination on remand.
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schedule for achieving the nitrogen limit.82
So ordered.
82 Although 40 C.F.R. § 124.19 contemplates that additional briefing typically will be submit-
ted upon a grant of review, a direct remand without additional submissions is appropriate where, as here, it does not appear as though further briefs on appeal would shed light on the issues. See, e.g., In re Amerada Hess, 12 E.A.D. 1, 21 n.39 (EAB 2005).
VOLUME 13
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