Massachusetts Port Authority, Logan International Airport (Board decision, September 19, 2007)

Plain-English summary

EPA Region 1 issued an NPDES permit for stormwater discharges from Logan International Airport in Boston. Joseph J. Cappuccio objected that the permit would harm Boston Harbor, but he did not identify specific permit conditions or explain how the permitting decision was clearly erroneous, an abuse of discretion, or an important policy issue. The Environmental Appeals Board also found that he had not commented on the draft permit, attended the public hearing, or identified changes between the draft and final permits. The Board denied review of the permit. The order does not state a penalty.

Decision snapshot

• Cited authorities: Clean Water Act § 402, 33 U.S.C. § 1342; 40 C.F.R. §§ 124.13, 124.19(a), and 124.73.
• Outcome: Review of NPDES Permit No. MA0000787 was denied.
• Key point: A permit challenger must participate in the public review process and identify specific conditions and grounds for EAB review.

Full text (EPA EAB public release)

             BEFORE THE ENVIRONMENTAL APPEALS BOARD
         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C.

                                                                             SEP 19 2007
                                                                             Clerk, Environmental Appeals Board
                                                                             INITIALS

In re:

Massachusetts Port Authority, NPDES Appeal No. 07-16 Logan International Airport

NPDES Permit No. MA0000787

                          ORDER DENYING REVIEW

     On July 31, 2007, Region 1 of the U.S. Environmental Protection Agency issued a

National Pollutant Discharge Elimination System ("NPDES") permit to the Massachusetts Port Authority and various co-permittees (collectively "Massport"), pursuant to Clean Water Act
§ 402, 33 U.S.C. § 1342. The permit authorizes stormwater discharges from Logan International Airport in Boston, Massachusetts, into the waters of the United States, in accordance with a variety of terms and conditions intended to protect those waters. Under the NPDES permit, Massport will be responsible for ensuring compliance with new limitations on the amounts of oil, grease, and total suspended solids Logan Airport is allowed to discharge in its stormwater. The permit also directs Massport to: (1) monitor the outfalls that drain the Airport's runways to determine the level of various pollutants in the stormwater; (2) develop a comprehensive Storm Water Pollution Prevention Plan to control pollutants; and (3) conduct a water quality study to assess the impacts on the waters of Boston Harbor resulting from aircraft and runway deicing activities. These requirements are not contained in the NPDES permit under which Massport is presently operating the Airport, and thus the new permit offers more rigorous protections for the aquatic environment than the current permit.

   On August 14, 2007, Mr. Joseph J. Cappuccio filed a letter with the Environmental

Appeals Board ("Board") opposing the issuance of the permit by Region 1 on the ground that the stormwater discharges authorized by the permit will constitute an "assault" on the "very fragile ecosystem" of Boston Harbor. Mr. Cappuccio contends that "[t]he issuance of this permit shows a flawed process that allows polluted fluids and liquids to be discharged into Boston Harbor." He provides no further allegations or information in his letter regarding the permit or permitting process.

   On September 5, 2007, Region 1 filed a response to Mr. Cappuccio's letter. The Region

argues that the Board should deny Mr. Cappuccio's petition for review of the permit on procedural and substantive grounds. First, the Region claims that Mr. Cappuccio did not file comments on the draft NPDES permit during the public comment period, participate in the public hearing the Region held on the permit, or identify any changes made in the final permit that were not present in the draft permit, and thus, under 40 C.F.R. §§ 124.73 and 124.19(a), he has no standing to appeal the permit. Second, the Region contends that Mr. Cappuccio failed to specifically identify any disputed permit conditions and demonstrate how those conditions are based on (a) findings of fact or conclusions of law that are clearly erroneous, or (b) exercises of discretion or important policy considerations that the Board should, in its discretion, review, and, thus, under 40 C.F.R. § 124.19(a), he has no substantive basis for appealing the permit. The Region urges the Board to deny review of the permit and seeks an expedited resolution of this purportedly "meritless" appeal so that Massport's permit can go into effect on September 29, 2007, as scheduled.

   Upon examination of the documents filed with the Board, we agree with the Region that

the pending appeal lacks merit. Mr. Cappuccio fails to indicate in his letter that he participated in the public review process by submitting written comments on the draft permit or presenting testimony at the public hearing, and the Region asserts that he in fact did not do so, despite receiving individual notice by mail of the pending permit action. Mr. Cappuccio also fails to identify in his letter any specific permit conditions or provisions to which he is objecting that allegedly changed between the draft and final versions of the permit. Finally, Mr. Cappuccio makes no attempt to demonstrate that any particular terms or conditions of the permit are based on findings of fact or conclusions of law that are clearly erroneous, an improper exercise of discretion, or an important policy consideration warranting Board review.

   In these circumstances, Mr. Cappuccio lacks standing under 40 C.F.R. §§ 124.13 and

124.19(a) to file an appeal of Massport's NPDES permit to this Board. See, e.g., In re Avon Custom Mixing Servs., 10 E.A.D. 700, 704-08 (EAB 2002) (finding petitioner's failure to comment on draft permit to be "fatal" to its appeal); In re Knauf Fiber Glass, GmbH, 8 E.A.D. 121, 173 (EAB 1999); In re Village of Pender Waste Water Treatment Facility, NPDES Appeal Nos. 07-05 to -07, at 34 (EAB Apr. 19, 2007) (Order Dismissing Petitions for Review). Moreover, the arguments in Mr. Cappuccio's letter are not specific enough to fulfill the requirements of 40 C.F.R. §§ 124.13 and 124.19(a) and thus do not warrant further consideration. See, e.g., In re Phelps Dodge Corp., 10 E.A.D. 460, 495-96 (EAB 2002) (rejecting challenge to endangered species analysis for lack of sufficient specificity); Knauf, 8 E.A.D. at 127 (noting that petitions filed by persons unrepresented by legal counsel need not contain sophisticated arguments or precise terminology but nonetheless must provide sufficient specificity as to alert the Board to the issues being raised); In re Envotech, L.P., 6 E.A.D. 260, 267-69 (EAB 1996) (under 40 C.F.R. § 124.19(a), petition for review must contain clear identification of the permit conditions at issue and argument that the conditions warrant review); In re Bechman Prod. Servs., 5 E.A.D. 10, 18-19 (EAB 1994) (same). For these reasons, we deny review of NPDES Permit No. MA0000787.

  So ordered.

                                    ENVIRONMENTAL APPEALS BOARD

                                    By: [signature]
                                    Anna L. Wolgast
                                    Environmental Appeals Judge

  The three-member panel deciding this matter is comprised of Environmental Appeals

Judges Edward E. Reich, Kathie A. Stein, and Anna L. Wolgast. See 40 C.F.R. § 125(e)(1).

                       CERTIFICATE OF SERVICE

   I hereby certify that copies of the foregoing Order Denying Review in the matter of

Massachusetts Port Authority, Logan International Airport, NPDES Appeal No. 07-16, were sent to the following persons in the manner indicated:

By First Class U.S. Mail, Return Receipt Requested:

Joseph J. Cappuccio
746 East Fourth Street
South Boston, Massachusetts 02127

William Lahey, Esq.
Anderson & Krieger
One Canal Park, Suite 200
Cambridge, Massachusetts 02141

By EPA Pouch Mail:

Jeffry Fowley, Senior Assistant Regional Counsel
U.S. Environmental Protection Agency, Region 1
One Congress Street
Boston, Massachusetts 02114
telephone: (617) 918-1094

    SEP 19 2007

Date: