Upper Blackstone Water Pollution Abatement District (Board decision, May 28, 2010)
In re Upper Blackstone Water Pollution Abatement District (EAB NPDES Appeal Nos. 08-11 to 08-18 and 09-06): permit remanded in part
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Plain-English summary
Upper Blackstone Water Pollution Abatement District operates a wastewater treatment plant in Millbury, Massachusetts, that discharges to the Blackstone River. Several parties challenged conditions in the District's renewed NPDES permit, including limits for nitrogen, phosphorus, fecal coliform, and aluminum, monitoring requirements, compliance schedules, and the use of municipal collection systems as co-permittees. The Board denied review of those issues because the petitioners did not show clear error or abuse of discretion. It remanded the permit provisions imposing permit conditions on certain municipalities because the Region had not adequately explained the statutory, regulatory, and factual basis for extending the permit beyond the treatment plant owner and operator to separately owned collection systems. The permit was therefore remanded in part, while the remaining challenged conditions were left in place.
Decision snapshot
- Cited authorities: 33 U.S.C. §§ 1311, 1313, 1341, 1342, and 1369; 40 C.F.R. §§ 122.4, 122.44, 122.47, 124.13, 124.18, and 124.19
- Outcome: Review was denied for the challenged limits, monitoring requirements, compliance schedules, and environmental justice issues, while the co-permittee provisions were remanded.
- Key point: An NPDES permit record must explain the legal and factual basis for imposing permit conditions on separately owned collection systems that do not directly discharge to waters of the United States.
Full text (EPA EAB public release)
UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 577
IN RE UPPER BLACKSTONE WATER POLLUTION
ABATEMENT DISTRICT
NPDES Appeal Nos. 08-11 to 08-18 & 09-06
ORDER DENYING REVIEW IN PART AND REMANDING IN
PART
Decided May 28, 2010
Syllabus
On August 22, 2008, U.S. Environmental Protection Agency Region 1
(the “Region”) issued to Upper Blackstone Water Pollution Abatement District (the “Dis- trict”) a National Pollution Discharge Elimination System (“NPDES”) permit, number MA0102369 (the “Permit”). The District owns and operates a wastewater treatment plant located in Millbury, Massachusetts (the “Treatment Plant”), which collects and treats sew- age and wastewater from the surrounding area, including from collection systems owned by nearby municipalities. The Permit would authorize, subject to the Permit’s conditions, pollutant discharges from the Treatment Plant into the Blackstone River. The District, sev- eral municipalities and a governmental entity that discharge to the District’s Treatment Plant, several environmental groups, and the Massachusetts Department of Environmental Protection (“MassDEP”) filed petitions requesting that the Environmental Appeals Board (“Board”) review the Permit’s conditions.
The parties request EAB review of the Permit’s conditions on five principle grounds.
First, the District and the municipalities challenge the Permit’s provisions making certain municipalities co-permittees on the Permit. Second, Conservation Law Foundation (“CLF”), the District, and MassDEP challenge the Permit’s limits for total nitrogen, phos- phorous, fecal coliform, and aluminum. Third, the District challenges the sampling and monitoring requirements for a variety of pollutants. Fourth, the District argues that the Permit should include compliance schedules establishing when the District must comply with the new more stringent permit limits. And, fifth, the District argues that the Region did not provide adequate opportunity for public comment by environmental justice communities.
Held: the Board denies review in all respects except one; the Board remands the
Permit’s provisions adding, as co-permittees subject to the Permit’s conditions, certain mu- nicipalities served by the District’s Treatment Plant.
1) The Permit makes certain entities “co-permittees,” thereby extending standard Permit conditions governing operation, maintenance, and reporting to these sewage collection sys- tems not owned or operated by the District, but instead owned and operated by the munici- palities listed in the Permit. There is no similar provision in the prior 2001 permit under which the District is currently authorized to discharge treated wastewater into the Black- stone River. The Board concludes that, here, where the Region has abandoned its historical
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practice of limiting the permit only to the legal entity owning and operating the wastewater treatment plant, the Region has not sufficiently articulated in the record of this proceeding the statutory, regulatory, and factual bases for expanding the scope of NPDES authority beyond the treatment plant owner and operator to separately owned and operated collection systems that do not discharge directly to waters of the United States, but instead that dis- charge to the treatment plant.
2) The Board concludes the Region did not clearly err or abuse its discretion in establishing the Permit’s total nitrogen limit. The Board concludes that the record is sufficient to sup- port the Region’s determination pursuant to 40 C.F.R. § 122.44(d)(1)(i) that nitrogen is present in the District’s effluent at a concentration that causes, has the reasonable potential to cause, or contributes to a violation of Rhode Island’s narrative water quality criteria. The Board also concludes that, contrary to the contention of one petitioner, that petitioner has not shown that a limit more stringent that 5.0 mg/l is necessary to ensure compliance with applicable water quality standards. And, the Board concludes, contrary to other Petitioners’ contentions, scientific uncertainty in the record regarding fate and transport of the District’s total nitrogen discharges does not establish that the Region clearly erred or abused its dis- cretion in setting the Permit’s limit at 5.0 mg/l pursuant to 40 C.F.R. § 122.44(d)(1)(vi). It also was not unreasonable for the Region to conclude that consistency with Rhode Island’s interpretation of its narrative requirement warranted expressing the Permit’s limit as a con- centration rather than as a mass limit.
3) The Board concludes that the petitioners have not shown clear error or an abuse of discretion in the Region’s decision setting the Permit’s total phosphorus limit. The Board rejects the District’s contention that the Region failed to connect the phosphorus discharges with specific impairments in designated uses. The Region identified the designated uses that are impaired as well as the criteria that are violated and explained why it concluded there is a reasonable potential that the District’s discharges cause the observed violations. The Board also concludes that the specific arguments challenging the Permit’s limit as not sufficiently stringent were not preserved for appeal. The Board further concludes that the Region properly applied 40 C.F.R. § 122.44(d)(1)(vi)(B) when the Region referred to EPA criteria in setting the total phosphorus limit and that the record supports the Region’s deci- sion setting the Permit’s total phosphorus limit. In particular, the District has not pointed to any EPA or Massachusetts numeric criteria, nor any other relevant record evidence, that would support a total phosphorus limit of 0.75 mg/l as sufficient to control cultural eu- trophication immediately and further downstream from the District’s discharge point. Fur- ther, the Region appropriately relied on the severe phosphorus-driven cultural eutrophica- tion violating water quality criteria and impairing the Blackstone River’s designated uses in setting a stringent permit limit at this time without waiting for further data.
4) The Board concludes that the District has not shown clear error or an abuse of discretion in the Region’s decision to set the Permit’s limit for fecal coliform for the period of No- vember 1 through March 31 at a monthly geometric mean of 571 cfu/100 ml and a daily maximum of 1429 cfu/100 ml. The Board concludes that there is no ambiguity in Rhode Island’s law establishing a year-round designated use for the Blackstone and Seekonk Riv- ers for both primary and secondary contact recreational activities, and that there is no am- biguity, or seasonal exception, in Rhode Island’s numeric criterion for fecal coliform for these waters. The District also has not established clear error or an abuse of discretion in the Region’s determination that the District’s fecal coliform discharges have the reasonable potential to violate Rhode Island’s numeric criterion for fecal coliform.
5) The Board concludes that the District has not shown clear error or an abuse of discretion in the Region’s decision to set the Permit’s aluminum limit at 87 g/l. The District’s argu- ments based on information introduced for the first time on appeal must be rejected. The
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Region was required to make its decision on the administrative record established pursuant to 40 C.F.R. § 124.18, and whether the Region committed clear error is measured by the record that was before the Region at the time it made its decision. Because the record evidence the District cites does not refute the Region’s response to comments, the Board must reject the District’s contention that the Region clearly erred in concluding that it must apply EPA’s nationally recommended criterion of 87 ug/l for aluminum in the Blackstone River.
6) The Board denies review of the District’s challenges to various metals limits and sam- pling and monitoring requirements. The Board also concludes that the Region appropri- ately rejected the District’s request for compliance schedules to be included as terms of the Permit, and the Region gave appropriate consideration to environmental justice issues.
Before Environmental Appeals Judges Charles J. Sheehan,
Kathie A. Stein, and Anna L. Wolgast.
Opinion of the Board by Judge Wolgast:
On August 22, 2008, U.S. Environmental Protection Agency Region 1
(the “Region”) issued to Upper Blackstone Water Pollution Abatement District (the “District”) a National Pollution Discharge Elimination System (“NPDES”) permit, number MA0102369 (the “Permit”). The District owns and operates a wastewater treatment plant located in Millbury, Massachusetts (the “Treatment Plant”), which collects and treats sewage and wastewater from the surrounding area including from collection systems owned by nearby municipalities. The Per- mit would authorize, subject to the Permit’s conditions, pollutant discharges from the Treatment Plant into the Blackstone River.
The following organizations filed petitions requesting that the Environmen-
tal Appeals Board (“Board”) review the Permit’s conditions: 1) the District; 2) the Town of Holden, Massachusetts (“Holden”); 3) the Town of Millbury, Massachu- setts (“Millbury”); 4) the City of Worcester, Massachusetts (“Worcester”); 5) the Northern RI Chapter 737 Trout Unlimited (“Trout Unlimited”);1 6) the Conserva- tion Law Foundation (“CLF”); 7) the Massachusetts Department of Environmental Protection (“MassDEP”); and 8) Cherry Valley Sewer District (“Cherry Valley”). The Rhode Island Department of Environmental Management (“RIDEM”) also re- quested, and the Board granted, permission to participate in this proceeding as Amicus Curiae.
1 In response to Trout Unlimited’s petition, the Region issued on April 15, 2009, a modifica-
tion establishing the Permit’s conditions for total aluminum discharge and monitoring. The District filed a second petition requesting that the Board review the modified total aluminum discharge and monitoring conditions. By Order dated August 7, 2009, the Board consolidated the original petitions and the District’s second petition for administrative purposes.
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For the reasons discussed below, the Board remands the Permit’s provisions
that add, as co-permittees subject to the Permit’s conditions, certain municipalities served by the District’s Treatment Plant, and the Board denies review of all other Permit conditions.
I. BACKGROUND
The Clean Water Act (“CWA”) generally prohibits anyone from discharging
pollutants into navigable waters, CWA § 301(a), 33 U.S.C. § 1311(a), and it au- thorizes EPA to issue NPDES permits allowing certain pollutant discharges sub- ject to the limits and conditions required by the CWA. CWA § 402, 33 U.S.C.
§ 1342. Pertinent to this case, section 301 requires pollutant discharge limits nec- essary to implement applicable state water quality standards.2 CWA § 301 (b)(1)(C), 33 U.S.C. § 1311(b)(1)(C). Specifically, section 301(b)(1)(A) requires technology-based limitations and section 301(b)(1)(C) requires any more stringent limitations “including those necessary to meet water quality standards.”3 The CWA prohibits EPA from issuing a permit that does not “insure” compliance with the water quality standards of both the state where the discharge originates and all affected states. See CWA § 401(a)(1), (2), 33 U.S.C. § 1341(a)(1), (2).4
EPA regulations implementing these statutory requirements specifically
prohibit the Region from issuing a permit “[w]hen the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected States.” 40 C.F.R. § 122.4(d). EPA’s implementing regulations also re- quire that the Permit must include conditions “necessary” to “[a]chieve water qual- ity standards established under section 303 of the CWA, including State narrative
2 Water quality standards, adopted by states and approved by EPA under the CWA, are
designed to protect the public health or welfare, enhance water quality, and advance the purposes of the CWA. CWA § 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A). They consist of these three components: (1) one or more “designated uses” for each water body or water body segment; (2) water quality “criteria”; and (3) an antidegradation policy. See id.; 40 C.F.R. §§ 131.10 to 131.12. Water quality criteria – the component at issue in the present case – can consist of numerical concentration levels and/or narrative statements specifying the amounts of various pollutants that may be present in a water body without impairing the “designated uses” of that water body. See Office of Water, U.S. EPA , NPDES Permit Writer’s Manual § 6.1.1, at 89 (1996).
3
These water quality-based limits apply when technology-based limits required by sec-
tion 301(b)(1)(A) are insufficient to meet the applicable state water quality standards. EPA may not issue an NPDES permit if the permit does not meet CWA section 301’s effluent limitations require- ments. In re City of Fort Worth, 6 E.A.D. 392, 394 (EAB 1996).
4 CWA section 401(a)(2) requires EPA to notify any state that may be affected by the pro-
posed discharges and to “condition such license or permit in such manner as may be necessary to insure compliance with applicable water quality requirements.” CWA § 401(a)(2), 33 U.S.C.
§ 1341(a)(2).
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criteria for water quality.” 40 C.F.R. § 122.44(d)(1).5 Further, “[l]imitations must control all pollutants or pollutant parameters (either conventional, nonconven- tional, or toxic pollutants) which the [Region] determines are or may be dis- charged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality.” Id. § 122.44(d)(1)(i).
These provisions apply to, among others, discharges from publicly owned
treatment works (“POTW”), such as the District’s Treatment Plant and the associ- ated collection system at issue in the present case.6 The District’s Treatment Plant discharges into the Blackstone River, a navigable interstate water flowing from its origin in Massachusetts south into Rhode Island where it discharges into the Seek- onk River, a marine water. Fact Sheet for the Draft Permit at 1, 5 (“Fact Sheet”). The Seekonk discharges into the Providence River, which flows into Narragansett Bay. Id. The Treatment Plant’s effluent contains a variety of pollutants, including fecal coliform, ammonia-nitrogen, phosphorus, cadmium, copper, and zinc. Id. at 2 & Attach. A. The District is currently authorized to discharge pollutants to the Blackstone River pursuant to an NPDES permit EPA issued on September 30, 1999, and modified on December 19, 2001. Because the District timely filed an application for permit renewal, the District’s previous, but now expired, 2001 NPDES permit remains in effect authorizing the District’s discharges until the present permitting proceeding is resolved. 40 C.F.R. § 122.6.
5 Section 122.44(d)(1) provides in relevant part as follows:
[E]ach NPDES permit shall include conditions meeting the following re-
quirements when applicable.
* * *
(d) Water quality standards and State requirements: any require-
ments in addition to or more stringent than promulgated effluent limita-
tions guidelines or standards under sections 301, 304, 306, 307, 318 and
405 of CWA necessary to:
(1) Achieve water quality standards established under section 303
of the CWA, including State narrative criteria for water quality.
40 C.F.R. § 122.44.
6 The term “publicly owned treatment works” is defined by the regulations at 40 C.F.R.
§ 403.3(o) as a municipality- or state-owned “treatment works” as defined under CWA section 212. The regulatory definition specifically includes the “POTW Treatment Plant” and the sewers, pipes and other conveyances that convey wastewater to the POTW Treatment Plant. The term “POTW Treatment Plant” is defined as the portion of the POTW designed to provide treatment of municipal sewage and industrial waste. 40 C.F.R. § 403.3(p). One of the central disputes in this case concerns the scope of the collection system that is properly included within the Permit’s requirements. These issues are dis- cussed in Part II.C below.
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This case arises out of the District’s application for renewal of its NPDES
permit. After receiving the District’s application for permit renewal, the Region prepared a draft permit and, on March 23, 2007, the Region opened public com- ment on the draft permit. During the public comment period, which closed on May 25, 2007, the Region received comments from the District and from numer- ous other organizations and individuals. In August, 2008, the Region issued its responses to the public comments and its final Permit decision, and the parties subsequently filed their petitions requesting the Board review the Permit’s conditions.
When initially issued in August 2008, the Permit did not include a limit for
total aluminum. In its response brief, the Region stated that it “plans to issue a draft permit modification to establish an aluminum effluent limit,” Respondent Region 1’s Memorandum in Response to Petitions for Review at 133 (“Region’s Resp. Br.”), and on April 15, 2009, the Region issued a Permit modification set- ting the Permit’s aluminum limit. On May 20, 2009, the District filed a petition seeking review of the aluminum limit. See Petition for Review of Revised Permit Conditions and Motion of the Permittee, Upper Blackstone Water Pollution Abatement District, to Consolidate this Petition with Others Related to this Per- mit, NPDES Appeal No. 08-11 (May 20, 2009) (herein “Dist. Al Pet.”). By order dated August 6, 2009, the Board consolidated the District’s petition for review of the Permit modification with the District’s petition for review of other conditions of the Permit. See n.1.
The Board held oral argument in this matter on October 29, 2009. Subse-
quently, the District filed a motion seeking to correct alleged errors in the tran- script of the District’s argument at oral argument, and the Region and CLF filed responses stating that if any part of the transcript is corrected, all parts should be corrected. The Board denies the request to correct the oral argument transcript. The alleged transcription errors the District identifies appear to be insubstantial and are not material to the Board’s decision as set forth below. The Board’s deci- sion is based on the administrative record at the time the Region issued its deci- sion. 40 C.F.R. § 124.18. Oral argument provides the Board an opportunity to better understand the parties’ arguments as set forth in the petitions and response briefs; oral argument does not supplement the record established under section 124.18. Where the Board quotes the oral argument transcript in this decision, the Board has compared the transcript to the audio recording and determined that the transcript accurately represents the arguments made. Because the Board concludes the transcription errors are insubstantial and not material to the Board’s decision set forth below, it is not necessary for the Board to determine whether the numer-
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ous deletions and additions the District proposes are in fact accurate.7
II. DISCUSSION
The parties request EAB review of the Permit’s conditions on five principal
grounds. First, the District, Holden, and Worcester, supported by Millbury and Cherry Valley as amicus curiae, challenge the Permit’s provisions making Holden, Millbury, Worcester, and Cherry Valley and other municipalities co-permittees on the Permit. Second, CLF, the District, and MassDEP challenge the Permit’s limits for total nitrogen, phosphorous, fecal coliform, and aluminum. Third, the District challenges the sampling and monitoring requirements for a va- riety of pollutants. Fourth, the District challenges the Region’s determination that it is not authorized to include schedules establishing when the District must com- ply with the new more stringent permit limits. And, fifth, the District challenges the Region’s response to the District’s public comments regarding the effect of the Permit on environmental justice communities.
A. Millbury and Cherry Valley Standing
The initial question before the Board is whether Millbury and Cherry Valley
have standing to contest the Permit’s terms. The regulations that govern permit appeals require petitioners to have standing to appeal, which means that the peti- tioner must have participated in the public review process either by filing written comments or by participating in a public hearing. 40 C.F.R. § 124.19(a). If a peti- tioner did not participate in the public review process, it may only appeal issues pertaining to changes from the draft to the final permit. Id.; see also In re Ameri- can Soda, LLP, 9 E.A.D. 280, 288 (EAB 2000); In re Envotech, L.P., 6 E.A.D. 260, 266 (EAB 1996) (quoting In re Beckman Prod. Servs., 5 E.A.D. 10, 16 (EAB 1994)). In the present case, Millbury and Cherry Valley do not indicate that they participated in the public review process by submitting written comments on the draft permit or by presenting testimony at the public hearing, and their argu- ments are not focused on changes between the draft and final permits. As such, Millbury and Cherry Valley have failed to demonstrate standing to file an appeal of the Permit under 40 C.F.R. §§ 124.13 and 124.19(a). 40 C.F.R. §§ 124.13,
.19(a); see, e.g., American Soda, 9 E.A.D. at 288 (dismissing petitions on standing grounds); In re Knauf Fiber Glass, GmbH, 8 E.A.D. 121,173 (EAB 1999) (dis- cussing standing). Nevertheless, the Board generally has allowed the permittee to participate in appellate proceedings by filing a response to petitions pending before the Board and, thus, in the present context where Millbury and Cherry
7 If any party believes there is an error in the transcript that would have affected the Board’s
decision as rendered, that party should file, within 10 days after this decision is issued, a Motion for Reconsideration pointing out the alleged error and how it relates to the Board’s decision.
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Valley are listed as co-permittees under the Permit’s terms, they will be recog- nized as amici curiae and their filings considered amicus briefs.
B. Standard of Review
The burden of persuading the Board that it should review a permit rests with
the petitioner, who must demonstrate that any issues and arguments it raises on appeal have been preserved for Board review, unless the issues or arguments were not reasonably ascertainable before the close of public comment. 40 C.F.R.
§§ 124.13, .19(a); see In re City of Moscow, 10 E.A.D. 135, 141 (EAB 2001); In re City of Phoenix, 9 E.A.D. 515, 524 (EAB 2000), appeal dismissed per stip., No. 01-70263 (9th Cir. Mar. 21, 2002).8
The Board has frequently emphasized that, to preserve an issue for review,
comments made during the comment period must be sufficiently specific. In re New Eng. Plating Co., 9 E.A.D. 726, 732 (EAB 2001); In re Steel Dynamics, Inc., 9 E.A.D. 165, 230-31 (EAB 2000); In re Maui Elec. Co., 8 E.A.D. 1, 9 (EAB 1998). On this basis, the Board often has denied review of issues raised on appeal that the commenter did not raise with the requisite specificity during the public comment period. See, e.g., New Eng. Plating, 9 E.A.D. at 732; Maui, 8 E.A.D. at 9-12; In re Fla. Pulp & Paper Ass’n, 6 E.A.D. 49, 54-55 (EAB 1995); In re Pollution Control Indus. of Ind., Inc., 4 E.A.D. 162, 166-69 (EAB 1992).
Assuming that the issues have been preserved, the petitioner must state its
objections to the permit and explain why the permit issuer’s previous response to those objections is clearly erroneous, an abuse of discretion, or otherwise warrants review. 40 C.F.R. § 124.19(a); see In re Town of Ashland Wastewater Treatment Facility, 9 E.A.D. 661, 668 (EAB 2001); In re Haw. Elec. Light Co., 8 E.A.D. 66, 71-72 (EAB 1998). In reviewing NPDES permits, the Board is guided by the con- cept articulated in the preamble to the part 124 permitting regulations, which states that the Board’s power of review “should be only sparingly exercised” and that “most permit conditions should be finally determined at the [r]egional level.” 45 Fed. Reg. 33,290, 33,412 (May 19, 1980); accord City of Moscow, 10 E.A.D. at 141. A petitioner may not simply reiterate comments made during the public comment period, but must substantively confront the permit issuer’s subsequent explanations. In re Peabody W. Coal Co., 12 E.A.D. 22, 33 (EAB 2005); accord, In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 666 (EAB 2006).
8 In other words, the regulations require that persons who seek review of a permit decision
“must raise all reasonably ascertainable issues and submit all reasonably available arguments sup- porting their position by the close of the public comment period” on the draft permit. 40 C.F.R.
§ 124.13 (emphases added).
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Finally, a petitioner seeking review of issues that are technical in nature
bears a heavy burden because the Board generally gives substantial deference to the permit issuer on questions requiring scientific or technical judgment. Town of Ashland, 9 E.A.D. at 667; In re NE Hub Partners, L.P., 7 E.A.D. 561, 567-68 (EAB 1998), review denied sub nom. Penn Fuel Gas, Inc. v. U.S. EPA, 185 F.3d 862 (3d Cir. 1999).
C. Challenges to the Permit’s Co-Permittee Provisions
The District, Holden, and Worcester, supported by Millbury and Cherry
Valley participating as amici curiae, seek review of the Permit’s condition that makes certain entities “co-permittees.” The Permit states as follows:
The City of Worcester, the Towns of Millbury, Auburn,
Holden, West Boylston and Rutland, and the Cherry Val-
ley Sewer District discharge wastewater into the [Dis-
trict’s] facility and are co-permittees for Part D and Part E
and are responsible for implementation of the operation
and maintenance and reporting requirements of Parts D
and E related to their respective system. The Towns of
Sutton, Shrewsbury, Oxford and Paxton are also author-
ized to discharge wastewater into the [District’s] facility.
Only municipalities specifically listed above are author-
ized to discharge wastewater into the [District’s] facility.
Permit at 1. This provision extends standard Permit conditions governing opera- tion, maintenance, and reporting to sewage collection systems not owned or oper- ated by the District, but instead owned and operated by the listed municipalities and Cherry Valley. There is no similar provision in the prior 2001 permit under which the District is currently authorized to discharge treated wastewater into the Blackstone River. The Region states, “historically, the Region has issued an NPDES permit only to the legal entity owning and operating the wastewater treat- ment plant.”9 The Region added the co-permittees to the Permit to control inflow
9 The Region’s response to comments explains that the Permit’s co-permittee provision departs
from prior practice – the Region stated:
As [the District] is well aware, historically, the Region has issued an
NPDES permit only to the legal entity owning and operating the waste-
water treatment plant, which is only a portion of the ’treatment works’
serving the communities for whom the [District] provides wastewater
treatment. The Region has now chosen to provide a more comprehensive
approach to permitting these facilities to ensure proper operation and
compliance of the entire treatment works, not a portion of it.
Continued
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and infiltration (“I/I”)10 in sewage collection systems transporting wastewater to the District’s Treatment Plant.11
The parties and amici challenge this new co-permittee provision from sev-
eral vectors. The parties and amici argue that the Region does not have the author- ity to add the co-permittees because the co-permittees did not sign the permit ap- plication. See, e.g., Dist. Supp. Pet. at 63. The parties and amici also argue that the Region acted arbitrarily in determining which satellite systems to include as co-permittees and which to exclude altogether (e.g., Massachusetts Department of Conservation and Recreation) or simply list, but not add as co-permittees (e.g., Sutton, Shrewsbury, Oxford, and Paxton). Dist. Supp. Pet. at 64. They argue fur- ther that the District is improperly made liable for reporting activities associated with satellite collection systems it does not own or control and over which its enabling legislation prohibits it from exercising control. Dist. Supp. Pet. at 61-62. The District additionally argues in its reply brief that the co-permittees do not “discharge [] a pollutant” within the meaning of the statute and regulations and that the collection systems that connect to the District’s system and Treatment Plant “are exempt indirect discharges under 40 C.F.R. § 122.3.” Reply of the Per- mittee, Upper Blackstone Water Pollution Abatement District, to Region 1’s Memorandum in Opposition to Petitions for Review, the Amicus Curiae Brief of Rhode Island Department of Environmental Management and Other Petitions for Review (“Dist. Reply Br.”) at 9-10, 16.
(continued)
Region’s Response to Comments at 84-85 (“RTC”). Although the Region acknowledged that the inclu- sion in this Permit of co-permittees owning collection systems is a departure from the Region’s prior practice, the Region has informed the Board that it has taken this approach in other recently issued permits. See Letter from Karen McGuire, U.S. EPA Region 1, to Eurika Durr, Clerk of the Board, U.S. EPA Environmental Appeals Board (Nov. 10, 2009).
10 “Infiltration is groundwater that enters the collection system through physical defects such
as cracked pipes, or deteriorated joints. Inflow is extraneous flow entering the collection system through point sources such as roof leaders, yard and area drains, sump pumps, manhole covers, tide gates, and cross connections from storm water systems.” Fact Sheet at 19. “Significant I/I in a collec- tion system uses conveyance and treatment capacity that will then not be available for sanitary flow, thereby reducing the capacity and the efficiency of the treatment works and increasing the possibility of sanitary sewer system overflows (SSO) from the collection system.” Id.
11 The Region described the requirements imposed on the co-permittees as “reporting of unau-
thorized discharges including SSOs [sanitary sewer system overflows], maintaining an adequate main- tenance staff, performing preventative maintenance, controlling inflow and infiltration to separate sewer collection systems (combined sewers are not subject to I/I requirements) to the extent necessary to prevent SSOs and I/I related effluent violations at the wastewater treatment plant, and maintaining alternate power where necessary.” Fact Sheet at 19. The Region explained that these operation and maintenance requirements are authorized by 40 C.F.R. § 122.41(e), (d), and that the Permit’s specific inflow and infiltration conditions are required by Massachusetts’ state certification issued under sec- tion 401 of the CWA. Id. at 18-19
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At bottom, the central issue regarding the co-permittee requirement is: did
the Region satisfactorily articulate a rule-of-decision, or interpretation, for ex- panding the Permit to encompass separately owned and operated collection sys- tems that discharge into the District’s Treatment Plant and identify a sufficient statutory and regulatory basis for that expansion?
The Region contends that it did articulate a satisfactory rationale, pointing
to its interpretation of the definition of “publicly owned treatment works,” which includes “sewers, pipes, and other conveyances.” 40 C.F.R. §§ 122.2, 403.1; see also CWA § 212(2)(A), 33 U.S.C. § 1292 (definition of “treatment works” includes “sewage collection systems”). In its response to comments, the Region stated that this definition provides authority to “to regulate the entire POTW (including the treatment plant and collection systems).” RTC at 86. Following this logic, any collection system that ultimately discharges to the Treatment Plant is subject to NPDES permitting. The Region attempted to narrow this universe of potential NPDES permittees at oral argument.
At oral argument, in response to questions asking how far up the collection
systems the Region’s legal reasoning would allow the Region to impose co-permittee requirements, the Region stated that the Region “would regulate it in the same way” as a single-entity POTW. EAB Oral Argument Transcript (“Tr.”) at 70. “We can regulate that which is legally part of the POTW that falls within the definition of POTW.” Tr. at 71. When the Board sought further clarification and asked whether a public entity could be made a co-permittee, the Region responded:
No. If its part of – we’re regulating here the same way we
would if this were just the City of Worcester and it owned
the treatment works. So we’re taking the authority just as
far as we would in that case – what fits within the pub-
licly-owned treatment works in that case. So, we’re not
trying to go to users whether they be publicly owned.
* * * We are handling this the same way we do for the
many permits we have where one municipality owns the
whole thing.”
Tr. 80.
The trouble with the Region’s analogy, or reference, to permits issued to an
entity that “owns the whole thing” is that neither this answer nor its briefs identi- fies criteria demarcating what is, and what is not, part of “the whole thing” in this case where the Region has, without apparent explanation, abandoned its historical practice of limiting the permit “only to the legal entity owning and operating the wastewater treatment plant.” In addition, the undefined terms “collection system” and “user” do not add an analytical basis for categorizing as co-permitees certain,
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588 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
but not all, entities that discharge solely to a treatment plant and employ equip- ment that fits within the definition of “publicly owned treatment works.” Both users and collection systems ultimately discharge to the District’s Treatment Plant,12 and because users seemingly employ collection systems within their struc- tures in the form of branch drainpipes that collect and transport wastewater from fixtures to the main drainpipe, there is no self-evident distinction between the “collection system” and the “user.” Indeed, what the Region left unanswered at oral argument is precisely the question that the Board asked, namely under the Region’s reasoning, how far up collection systems does the regulatory jurisdiction to impose NPDES requirements on co-permittee reach.
Even assuming that, in permits involving a single-entity POTW, the Region
applies a reasonably precise distinction, other than property boundaries, identify- ing where the collection system ends and a user begins, that distinction is not expressed in the administrative record of this proceeding. See, e.g., In re Deseret Elec. Power Coop., 14 E.A.D. 212, 250-56 (EAB 2008) (denying appeal where rationale was not articulated in the administrative record); see also Dominion, 12 E.A.D. at 523-24(denied petitioner’s argument based on documents not in the administrative record); In re Kendall New Century Dev., 11 E.A.D. 40, 55 (EAB 2003) (rejecting petitioner’s argument based on evidence submitted in a different permit proceeding).
12 The Region stated in the Fact Sheet that “[b]ecause Worcester, Millbury, Auburn, Holden,
West Boylston, Rutland, and Cherry Valley Sewer District each own and operate collection systems that discharge to [the District’s] treatment plant, these entities have been included as co-permittees” for the specific permit conditions in Part I.D and I.E of the Permit. Fact Sheet at 19.
The Region’s failure to articulate in the Fact Sheet a more complete rationale for its decision
does not, on its own, necessitate a remand even though “the fact sheet shall briefly set forth the princi- pal facts and the significant factual, legal, methodological and policy questions considered in prepar- ing the draft permit.” 40 C.F.R. § 124.8(a). As explained in Attleboro, “the permitting authority is not required to provide comprehensive details in a fact sheet” because “[t]he rules governing permit pro- ceedings specifically allow the permitting authority to add materials to the administrative record dur- ing its review of comments on the draft permit to address new points or new materials” and the “ap- peals process affords petitioners the opportunity to question” the new material. In re City of Attleboro, MA, Wastewater Treatment Plant, 14 E.A.D. 462-63 (EAB 2009). The preamble to the rulemaking proposal for section 124.8 stated that, although the fact sheet must “explain[] the basis for the draft permit in some detail,” nevertheless “[b]ecause there are practical limits to EPA’s ability to explain each of the permits it issues in comprehensive detail, the discussion in the fact sheet * * * should be proportional to the importance of the issues involved and the degree of controversy surrounding them.” Consolidated Permit Regulations, 44 Fed. Reg. 34,244, 34,264 (proposed June 14, 1979) (em- phasis added). In the present case, although a more detailed discussion in the Fact Sheet was not per se error, these subsequent appeals illustrate that the Region’s brief statement on the issue quoted above was not proportional to the importance of the legal and factual issues and degree of controversy of the Region’s decision to depart from its prior practice limiting the NPDES permit’s scope to collection system owned or operated by the permit applicant. A more thorough explanation would have been helpful to public participation and the appellate process.
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The Region’s following explanation in its response to comments, likewise,
is inadequate: “wastewater from the treatment works (including the collection sys- tem) is discharged through the outfalls at [the District’s] treatment plant. There- fore, the treatment works (including the collection system) is subject to permit- ting.” RTC at 86. This explanation also does not identify where the “collection system” ends and a “user” begins, or in any other way identify the extent to which collection systems not owned by the entity owning or operating the treatment works are subject to NPDES permitting.
The Region also did not articulate in its response to comments a legal ratio-
nale for distinguishing between the particular municipalities named as co-permittees and other municipalities that were not so named. Instead, the Re- gion offered a pragmatic explanation for distinguishing between the two groups. The Region explained that it obtained the list it used to identify the co-permittees from the District’s answers to certain questions on the permit application and, when additional municipalities were identified during the public comment period, the Region stated that “[a]s the contributions from these [additional] municipal systems are relatively smaller than the other satellite systems, EPA will not in- clude these four [additional] municipalities as ‘co-permittees’ in this permit.” RTC at 88. While in some circumstances EPA has authority to exclude de minimis impacts from permitting requirements,13 such a pragmatic explanation does not satisfy the Region’s obligation to provide a legal rationale identifying the extent to which the NPDES requirements apply to collection systems that do not discharge directly to waters of the United States, but instead discharge to another entity’s collection system and ultimately to the treatment plant, and that are owned by entities other than the owner of the treatment plant.14
Upon consideration, the Permit’s co-permittee provision is remanded. The
Region has not sufficiently articulated in the record of this proceeding a
13 See, e.g., Alabama Power Co. v. Costle, 636 F.2d 323, 400 (D.C. Cir.1979). Here, however,
the Region has not provided record evidence supporting its conclusion that the excluded municipalities provide materially smaller contributions. There is no evidence regarding the relative size of these mu- nicipalities’ contributions, no criteria for a de minimis determination, nor any evidence that such con- tributions are de minimis.
14 Likewise, although the Region’s following statements at oral argument and in its response to
comments may provide a practical reason for extending the Permit to include co-permittees, these statements do not identify a limiting legal principle for the geographic reach of jurisdiction proposed here in which some seemingly similarly situated entities were made co-permitees and others were not. At oral argument, the Region stated that “no one is contesting that it makes sense to do this work in light of O&M [operation and maintenance requirements]. The need for O&M is to reduce the occur- rence of the tank and sewer overflows * * * .” Tr. at 72. In its response to comments, the Region explained that various regulatory provisions authorize EPA “to require appropriate operation and maintenance of collection systems” (citing 40 C.F.R. § 122.41(d), (e)) and “[s]ince the District does not own or operate some of the collection systems that discharge to the treatment works, it is appropri- ate to apply these conditions to the owners/operators as co-permittees.” RTC at 86.
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590 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
rule-of-decision, or interpretation, identifying the statutory and regulatory basis for expanding the scope of NPDES authority beyond the treatment plant owner and operator to separately owned and operated collection systems that discharge to the treatment plant.
In remanding the Permit’s co-permittee provision, the Board does not pass
judgment on the Region’s explanation, in its response to comments, for rejecting the District’s contention that the District’s status as owner and operator of the treatment plant defines the scope of the NPDES authority, limiting that authority to the treatment plant and collection system owned by the District. Specifically, pointing to CWA section 212(2)(A), which defines “treatment works” as including “sewage collection systems,” and to the similar regulatory definition of the term “publicly owned treatment works” found at 40 C.F.R. §§ 122.2 and 403.1, the Re- gion explained that the treatment plant “is only a portion of the ‘treatment works.’” RTC at 84. The Region stated further that it “has now chosen to provide a more comprehensive approach to permitting these facilities to ensure proper operation and compliance of the entire treatment works, not a portion of it.” Id. at 84-85. This explanation for the Region’s conclusion that it has legal authority to extend the Permit’s requirements beyond what the District owns and operates must be considered, as an integrated whole, together with the Region’s full legal analysis, which it has not yet provided, identifying the extent to which the NPDES require- ments apply to collection systems.
The Board also reserves judgment at this time on both (1) the Region’s rea-
sons for rejecting concerns expressed in the public comments regarding whether the Region’s decision to add the named co-permittees is consistent with the appli- cation signature requirements set forth in the regulations15 and (2) the District’s additional argument raised in its reply brief that the co-permittees do not “dis- charge [] a pollutant” within the meaning of the statute and regulations and that the collection systems that connect to the District’s system and Treatment Plant “are exempt indirect discharges under 40 C.F.R. § 122.3.” Dist. Reply Br. at 9-10,
- The question of consistency with the regulatory scheme is not ripe until the
Board has before it the Region’s full explanation identifying the extent to which the NPDES requirements apply to collection systems that do not discharge di- rectly to waters of the United States, but instead discharge to a collection system leading to the Treatment Plant, and that are owned by entities other than the District.15 The Region explained in its response to comments that “EPA is authorized to regulate the
entire POTW (including the treatment plant and collection system). That [the District] and its member communities have decided to maintain separate ownership of the treatment plant and collection system does not require the EPA to solicit separate signatures from each of the satellite systems.” RTC at 86.
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Accordingly, the Permit’s co-permittee provision is remanded for the Re-
gion to reconsider the extent to which the NPDES requirements apply to collec- tion systems that discharge to the treatment plant and are owned by entities other than the District, and to fully articulate its decision in the administrative record. On remand, the Region may re-issue the Permit with, or without, the co-permittee provision as the Region determines is appropriate.16 However, in the event the Region determines to re-issue the Permit with the co-permittee provision, the Re- gion’s analysis should address the issues discussed above and it should provide sufficient detail for the Board to evaluate whether the Region’s rationale is consis- tent with the statute and the regulatory scheme.17
D. Challenges to the Permit’s Limits for Total Nitrogen
The District, CLF, and MassDEP seek review of several Permit conditions
the Region established in order to ensure compliance with Rhode Island and Mas- sachusetts water quality criteria, one of three components of state water quality standards. The parties seek review of the Region’s decision establishing the Per- mit’s limits for total nitrogen, phosphorous, fecal coliform, and aluminum. These challenges generally question whether the Permit complies with the statutory re- quirements for permit limits under CWA section 301 and 402 and the statutory prohibition of CWA section 401 on issuing permits that do not “insure” compli- ance with state water quality standards. This subsection addresses the challenges to the Permit’s total nitrogen limit. Challenges to the limits applicable to phos- phorus, fecal coliform, and aluminum will be addressed in the following Parts II.E, .F, and .G, respectively.
The Region found that the Treatment Plant’s discharges of total nitrogen
would cause or contribute to violations of Rhode Island’s water quality standards, and the Region established in the final Permit a numeric limit for total nitrogen discharges of 5.0 mg/l monthly average for the months of May through October
16 There is no indication in the record of this proceeding whether the Region’s historical prac-
tice of issuing NPDES permits only to the treatment plant owner was announced as a policy or interpretation.
17 Among other things, the Region’s analysis should address the references to “municipality” in
the regulatory definition of POTW, and the definition’s statement that “[t]he term also means the mu- nicipality * * * which has jurisdiction over the Indirect Discharges to and the discharges from such a treatment works.” 40 C.F.R. § 403.3(o). The Region’s analysis should also explain how its rationale is consistent with the permit application signature requirements, 40 C.F.R. §§ 122.21(j)(10), 122.22, the exclusion from the permitting requirements for indirect dischargers, id. § 122.3(c), and the definitions of “discharge,” “discharge of a pollutant,” and “indirect discharger,” id. § 122.2, including the regula- tory history of those provisions (e.g., National Pollutant Discharge Elimination System, 44 Fed. Reg. 32,854, 32901 (June 7, 1979) (defining “indirect discharger” as “a non-municipal, non-domestic dis- charger * * * ”); Consolidated Permit Regulations, 45 Fed. Reg. 33,290, 33,421 (May 19, 1980) (defining “indirect discharger” as “a nondomestic discharger * * * ”).
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592 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
and a narrative limit specifying treatment optimization for November through April. Fact Sheet at 14. The District, CLF, and MassDEP seek Board review of this Permit condition on several grounds. CLF argues that the limit is not suffi- ciently stringent. CLF Pet. at 7-16. The District and MassDEP argue that the Re- gion did not have an adequate scientific basis for the limit it chose, and the Dis- trict argues further that the Region should delay its decision until there is greater scientific certainty. Dist. Supp. Pet. at 7-32; Massachusetts Department of Envi- ronmental Protection Supplemental Petition for Review (“MassDEP Supp. Pet.”) at 12-16. MassDEP also argues that the limit is improperly stated as a concentra- tion of the pollutant in the discharge and, instead, should be stated as a limit on the total mass of the pollutant that may be discharged. MassDEP Supp. Pet. at 7-12.
CLF bases its call for a more stringent total nitrogen limit on a statement in
a key scientific report prepared by RIDEM, Evaluation of Nitrogen Targets and WWTF Load Reductions for the Providence and Seekonk Rivers, Office of Water Resources (Dec. 2004) (the “2004 RIDEM Report”), which at one point states that requiring total nitrogen controls at the limit of technology, 3.0 mg/l, will not achieve water quality compliance in portions of the Providence and Seekonk Riv- ers. As CLF presents it, where the record contains such a “definitive statement,” CLF Reply at 2-3, there is no justification for the Region to set the Permit’s limit at a less stringent 5.0 mg/l, thereby allowing the District to discharge at a concen- tration 1.67 times higher than the limit of technology.
In contrast, the District argues that the Region’s decision is scientifically
unsound and finalization of any numeric limit on total nitrogen discharges should be delayed. Dist. Supp. Pet. at 19-27. The effect of the District’s request for delay would be to allow the District to continue discharging under its current permit with no limit on total nitrogen discharges. RTC at 24.18 The District does not even argue for a less stringent limit, such as a limit of 8.0 mg/l to 10 mg/l,19 which would allow total nitrogen to be discharged at concentrations 2.67 to 3.33 times higher than achievable at the limit of technology. Rather, as the District presents it, the Region does not have the authority to impose any limit whatsoever until there is a “fully developed model of the Bay,” that is a mathematical model or “a TMDL that can replicate the physical and chemical conditions observed in the Narragansett Bay.” Dist. Supp. Pet. at 24-25. The District argues that the Region must make this “demonstration before imposing numeric limits.” Dist. Reply
18 The District’s 2001 permit contains a limit for ammonia-nitrogen. Fact Sheet at 10-11.
19 The Region states that the District’s Treatment Plant would be able to achieve limits in the
range of 8 mg/l to 10 mg/l, after completion of upgrades that were in process during the time the Region was making its decision. RTC at 30.
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at 4.20
As explained in detail below, the Board concludes the Region made no clear
error or abuse of discretion in the Region’s analysis or decision. Briefly, CLF overstates the 2004 RIDEM Report’s certainty regarding the need for controls at the limit of technology, and CLF ignores the Report’s ultimate recommendation that the District’s limit be set at 5.0 mg/l. Conversely, the uncertainty the District and MassDEP point to fails to show that the Region clearly erred or abused its discretion in setting the Permit’s limit at 5.0 mg/l.21
In short, there is more than sufficient evidence in the record to establish that
the Narragansett Bay and the Providence and Seekonk Rivers are severely im- paired by nitrogen-driven eutrophication. The record also is sufficient to establish that the District is a significant discharger of nitrogen to the Blackstone River, which discharges into the most heavily impaired part of the upper Narragansett Bay, the Providence and Seekonk Rivers. Thus, as explained more fully below, there is no clear error in the Region’s conclusion that the District’s discharges of total nitrogen cause, have a reasonable potential to cause, or contribute to viola- tions of the Rhode Island water quality standards. The Board also concludes that the limit the Region selected of 5.0 mg/l is reasonable in light of the relevant available scientific analysis and data in the administrative record, and there is no clear error or abuse of discretion in the Region’s determination to state the Per- mit’s total nitrogen limit as a limit on the concentration of total nitrogen allowed in the District’s effluent. Accordingly, as explained below, the Board denies re- view of the Permit’s total nitrogen limit.
20 The District also objects to the narrative treatment optimization requirement applicable dur-
ing the months of November to April (i.e. “reduce the discharge of total nitrogen * * * to the maxi- mum extent possible.”). Dist. Supp. Pet. at 52-53 (quoting Permit n. 9). The District argues that the cold-weather optimization requirement should refer to the District’s “best judgment” to ensure “compli- ance with effluent limits,” rather than requiring reductions “to the maximum extent possible.” Id. The District has not shown clear error or an abuse of discretion. The phrase “maximum extent possible” is sufficiently certain in its meaning. A reference to the District’s “best judgment” would be less certain in meaning. Accordingly, review of this issue is denied.
21 The Board rejects the District’s argument that the Region improperly communicated with
RIDEM when the Region and RIDEM communicated regarding the Fiscal Year 2006-2007 Perform- ance Partnership Agreement. Dist. Supp. Pet. at 7-9. The District contends that the communication between the Region and RIDEM violates 5 U.S.C. § 557(d)(1), which prohibits ex parte communica- tion in matters governed by section 557(a). The District’s argument, however, must fail. The Region’s permitting decision is not governed by section 557, which applies only to proceedings required to be conducted in accordance with APA section 556. 5 U.S.C. § 557(a). NPDES permitting proceedings are not required to be conducted in accordance with APA section 556. In re USGEN New England, Inc., Brayton Point Station, 11 E.A.D. 525, 529-30 (EAB 2004) (denying motion for formal evidentiary hearing under APA section 556), aff’d sub nom Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006); Amendments to Streamline the National Pollutant Discharge Elimination System Program Regulations: Round Two, 65 Fed. Reg. 30,886 (May 15, 2000).
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594 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
1. The Region’s “Reasonable Potential” Determination is Supported
by the Record
Regulatory section 122.44(d)(1) requires that the Permit must include con-
ditions “necessary” to “[a]chieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality.” 40 C.F.R.
§ 122.44(d)(1).22 Subparagraph (d)(1)(i) governs which pollutants must be made subject to a water quality-based effluent limit: “Limitations must control all pollu- tants or pollutant parameters (either conventional, nonconventional, or toxic pol- lutants) which the [Region] determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality.” Id. § 122.44(d)(1)(i). Factors to be taken into account in the “reasonable potential” analysis are described more specifically by subparagraph (d)(1)(ii).23 If a pollutant discharge is found to cause, have the reasonable potential to cause, or contribute to exceedances of numeric or narrative state water quality criteria, then as discussed more fully in the next part, the permit writer must establish the limit as provided in subparagraphs (iii) through (vii). 40 C.F.R.
§ 122.44(d)(1)(iii)-(vii).
22 Section 122.44(d)(1) provides in relevant part as follows:
[E]ach NPDES permit shall include conditions meeting the following re-
quirements when applicable.
* * *
(d) Water quality standards and State requirements: any requirements in
addition to or more stringent than promulgated effluent limitations
guidelines or standards under sections 301, 304, 306, 307, 318 and 405
of CWA necessary to:
(1) Achieve water quality standards established under section 303 of the
CWA, including State narrative criteria for water quality.
40 C.F.R. § 122.44(d)(1).
23
The standards governing the “reasonable potential” analysis are set forth in 40 C.F.R.
§ 122.44(d)(1)(ii), which provides as follows:
When determining whether a discharge causes, has the reasonable poten-
tial to cause, or contributes to an in-stream excursion above a narrative
or numeric criteria within a State water quality standard, the permitting
authority shall use procedures which account for existing controls on
point and nonpoint sources of pollution, the variability of the pollutant
or pollutant parameter in the effluent, the sensitivity of the species to
toxicity testing (when evaluating whole effluent toxicity), and where ap-
propriate, the dilution of the effluent in the receiving water.
Id.
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 595
The Region described the two-step process governing the establishment of
the Permit’s water quality-based effluent limits as follows: “An NPDES permit must limit any pollutant or pollutant parameter (conventional, non-conventional, toxic and whole effluent toxicity) that is or may be discharged at a level that causes or has a ‘reasonable potential’ to cause or contribute to an excursion above any water quality criterion. Where EPA makes such a determination, it then pro- ceeds to establish an appropriate effluent limit.” RTC at 76. The Region’s “reason- able potential” analysis will be discussed in this Part II.D.1, and the Region’s anal- ysis supporting the specific numerical limit will be discussed in the following Part II.D.2.
The Region established the Permit’s total nitrogen numeric effluent limit to
achieve compliance with Rhode Island’s narrative water quality criteria. Fact Sheet at 11-12. Specifically, the Region determined pursuant to 40 C.F.R.
§ 122.44(d)(1)(i) that nitrogen is present in the District’s effluent at a concentra- tion that causes, has the reasonable potential to cause, or contributes to violation of Rhode Island’s narrative criteria. Id. at 12-14. The Region confirmed this deter- mination in its response to comments. See, e.g., RTC at 76.
The District argues that the Region clearly erred in making its “reasonable
potential” determination. Dist. Supp. Pet. at 27. The District contends that “[b]ecause a proper assessment of total nitrogen has not yet been completed, Re- gion 1 has not met its obligation to demonstrate the need for these numeric limita- tions.” Id. The District presents this argument as part of a broader, undifferenti- ated argument24 generally contending that the Region’s decision does not rest on an adequate scientific foundation, specifically that a total nitrogen limit cannot be imposed without science sufficient for an analysis equivalent to a “total maximum daily load” or “waste load allocation”25 for total nitrogen in the waters impacted by
24 The District has not differentiated its argument to recognize the different legal rules, as
described more fully in the text, governing the Region’s “reasonable potential” analysis under 40 C.F.R. § 122.44(d)(1)(i) and (ii) from the Region’s determination of the 5.0 mg/l Permit limit under 40 C.F.R. § 122.44(d)(1)(vi).
25 Under section 303(d) of the Clean Water Act, states are required to identify those water
segments where technology-based controls are insufficient to implement the applicable water quality standards, and which are therefore “water quality limited” or impaired. See CWA § 303(d)(1)(A), 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. § 130.2(j). Once a segment is identified as water quality limited, the state is further required to establish total maximum daily loads (“TMDLs”). CWA § 303(d)(1)(C), 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 130.7. A TMDL is a measure of the total amount of a pollutant from point sources, nonpoint sources, and natural background, which a water quality limited segment can tolerate without violating the applicable water quality standards. See 40 C.F.R. § 130.2(i). The portions of a receiving water’s loading capacity that are allocated to existing or future point sources of pollution are known as waste load allocations (“WLAs”). Id. § 130.2(h). On the other hand, the por- tions attributed to existing or future nonpoint sources of pollution or to natural background sources are known as load allocations (“LAs”). Id. § 130.2(g). Thus, a TMDL is, in simple terms, the sum of WLAs and LAs.
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596 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
the District’s discharges. Id. at 19-27.
Notably, the District does not challenge or contest significant parts of the
Region’s “reasonable potential” analysis. Specifically, the District has not identi- fied any error in the Region’s description of the water quality conditions of the Providence and Seekonk Rivers and Narragansett Bay. The Region explained that the Narragansett Bay and the Providence and Seekonk Rivers have suffered se- vere cultural eutrophication for many years that have resulted in periodic low dis- solved oxygen levels and fish kills and other impacts on fish and wildlife. Id. at 11-12. The Region stated as follows:
It is clear that eutrophication in the Seekonk and Provi-
dence Rivers and Narragansett Bay has reached a level
where it is adversely affecting the composition of fish and
wildlife; adversely affecting the physical, chemical, or bi-
ological integrity of the habitat, interfering with the prop-
agation of fish and wildlife; adversely altering the activi-
ties of fish and wildlife; and causing dissolved oxygen to
drop well below 5.0 mg/l. The effects of eutrophication,
including algae blooms and fish kills, are also interfering
with the designated uses of the water. Eutrophication has,
therefore, reached a point where it is causing violation of
water quality standards.
Fact Sheet at 12. The Region reinforced this determination in its response to com- ments: “The upper sections of Narragansett Bay (including the Providence and Seekonk rivers), are no longer able to support a healthy aquatic community. At times, dissolved oxygen levels decline dramatically and significant fish kills are becoming regular occurrences. Only a small fraction of the historic eelgrass habitat remains.” RTC at 80. The Region further found that “the Blackstone River discharges into the relatively poorly flushed areas at the head of the Upper Bay.” Id.
The District also has not challenged the Region’s conclusion that these eu-
trophic and associated conditions existing in the Narragansett Bay and the Provi- dence and Seekonk Rivers violate Rhode Island’s narrative water quality criteria. Fact Sheet at 12; RTC at 79-80. The Rhode Island water quality criteria state that “[t]otal phosphorus, nitrates and ammonia may be assigned site-specific permit limits * * * ,” and that nutrients shall not be allowed “in such concentration that would impair any usages specifically assigned to said Class, or cause undesirable or nuisance aquatic species associated with cultural eutrophication.” Fact Sheet at 12 (quoting 12-190-001 R.I. Code R. Tbl.2 § 8.D.(3)10). Rhode Island water quality criteria also state that waters shall be free of pollutants in concentrations or combinations or from anthropogenic activities that “[a]dversely affect the com- position of fish and wildlife,” “[a]dversely affect the physical, chemical, or biolog-
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 597
ical integrity of the habitat,” “[i]nterfere with the propagation of fish and wildlife,” or “[a]dversely alter the life cycle functions, uses, processes and activities of fish and wildlife.” Fact Sheet at 11 (quoting 12-190-001 R.I. Code R. § 8.D.(1)).26 The Region correctly supported its decision by noting that Rhode Island has listed the Seekonk River and Providence River on its section 303(d) list of waters impaired for nutrients, low dissolved oxygen, and excess algal growth/chlorophyll(a). Id. at 7. Rhode Island has also listed the Providence River as impaired for pathogens. Id.
26 Rhode Island’s regulations state as follows:
Water Quality Criteria – The following physical, chemical and biologi-
cal criteria are parameters of minimum water quality necessary to sup-
port the surface water use classifications of rule 8.B. and shall be appli-
cable to all waters of the State.
(1). General Criteria – The following minimum criteria are applicable to
all waters of the State, unless criteria specified for individual classes are
more stringent:
(a). At a minimum, all waters shall be free of pollutants in concentra-
tions or combinations or from anthropogenic activities subject to these
regulations that:
i. Adversely affect the composition of fish and wildlife;
ii. Adversely affect the physical, chemical, or biological integrity of the
habitat;
iii. Interfere with the propagation of fish and wildlife;
iv. Adversely alter the life cycle functions, uses, processes and activities
of fish and wildlife; or
v. Adversely affect human health.
(b). Aesthetics – all waters shall be free from pollutants in concentra-
tions or combinations that:
i. Settle to form deposits that are unsightly, putrescent, or odorous to
such a degree as to create a nuisance, or interfere with the existing or
designated uses;
ii. Float as debris, oil, grease, scum or other floating material attributable
to wastes in amounts to such a degree as to create a nuisance or interfere
with the existing or designated uses;
iii. Produce odor or taste or change the color or physical, chemical or
biological conditions to such a degree as to create a nuisance or interfere
with the existing or designated uses; or,
v. Result in the dominance of species of fish and wildlife to such a de-
gree as to create a nuisance or interfere with the existing or designated
uses.
12-190-001 R.I. Code R. § 8.D.(1).
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The District also has not challenged the Region’s determination that nitro-
gen is a significant cause and contributing factor in creating the eutrophic and associated conditions that violate water quality standards observed in the Narra- gansett Bay and the Providence and Seekonk Rivers. The Region explained that excessive loadings of nitrogen in marine water causes or contributes to eutrophi- cation and water-quality-damaging plant growth. RTC at 79-80, 92 106; Fact Sheet at 8-12. Indeed, the District specifically states that it does not dispute the “basic relationship between excessive nutrients and environmental impairment.” Dist. Supp. Pet. at 22.27
The District also has not identified any error in the Region’s conclusion that
“[t]he predominant sources of the nitrogen loading in the Providence and Seekonk Rivers are municipal wastewater treatment facilities in Rhode Island and Massa- chusetts.” Fact Sheet at 12. The Region explained as follows:
Numerous scientific studies conducted over the last 15 –
20 years have documented that excessive discharges of ni-
trogen are causing the impairment and wastewater dis-
charges are the dominant source of nitrogen. See also Nu-
trient and Bacteria Pollution Panel, Initial Report,
Governor’s Narragansett Bay and Watershed Planning
Commission, March 2, 2004 at page 3 (summarizing
studies).
RTC at 80.
The District also has not identified any record evidence that would contra-
dict the Region’s determination that the District’s effluent “is the dominant source of nitrogen loadings to the Blackstone River.” Fact Sheet at 12-13. The Region explained that:
[T]he UBWPAD – with a permitted design flow of 56
MGD – is one of the largest sources of nitrogen to Narra-
gansett Bay. The loadings data utilized in DEM’s 2004
study indicate that UBWPAD represented approximately
64% of the nitrogen load discharged to the Blackstone
River from municipal wastewater treatment facilities for
the period of time considered in the study.
27 The District specifically acknowledges that “[t]he relationship between productivity, as mea-
sured by chlorophyll-a, and concentrations of nutrients is well established by the MERL data.” Dist. Supp. Pet. at 21.
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 599
RTC at 80.28 Although the District states that it “disagrees with the Region’s char- acterization of the District’s relative contribution of loadings,” Dist. Supp. Pet. at 13 (quoting RTC at 53), the District has not identified any evidence in the record showing error in the Region’s conclusion that the District is the dominant nitrogen source.
Instead, the District attempts to carry its entire burden of showing clear er-
ror in the District’s “reasonable potential” analysis by pointing to uncertainty re- garding the precise relative contribution of the District’s nitrogen discharges to the overall eutrophication problem in Narragansett Bay and the Providence and Seek- onk Rivers. See Dist. Supp. Pet. at 27. That is simply not sufficient where the applicable legal standard looks not only to whether the District’s discharges “cause,” but also whether those discharges either “contribute to” or have a “reason- able potential” to cause, a violation of Rhode Island’s water quality standards.
The requirement to impose a permit limit is not only premised on a finding
that the pollutant discharges “are” at a level that “causes” violation of the applica- ble water quality standards, but the requirement is also triggered by a finding that the facility’s pollutant discharges “may” be at a level that “contributes” to or has the “reasonable potential” to cause a violation. 40 C.F.R. § 122.44(d)(1)(i). The juxtaposed contrasts between “are” and “may,” and between “cause” and both “con- tribute” and “reasonable potential,” indicate that the Region is not limited, as the District contends, to acting only where there is certainty of an existing causal link between a specific discharge and a particular violation of water quality standards. Instead, the regulation requires water quality-based effluent limits even when there is some degree of uncertainty regarding both the precise pollutant discharge levels and the potential causal effects of those discharges, so long as the record is sufficient to establish that there is a “reasonable potential” for that discharge to cause or contribute to a violation of water quality standards.29 Agency guidance and the Board’s decisions have also stated that the reasonable potential analysis must be based on the “worst-case” effluent conditions. In re Wash. Aqueduct Water Supply Syst., 11 E.A.D. 565, 584 (EAB 2004); accord Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 1001 (D.C. Cir. 1997) (discussing EPA’s policy that the reasonable potential analysis be based on the worst case scenario). The regula- tions, thus, require a precautionary approach when determining whether the per- mit must contain a water quality-based effluent limit for a particular pollutant.
The District’s references to uncertainty or lack of precision in the Region’s
determination of the District’s contribution to the problem relative to the contribu-
28 The acronym UBWPAD stands for Upper Blackstone Water Pollution Abatement District,
the petitioner in this case.
29 “Reasonable potential” requires some degree of certainty greater than a mere possibility, but
it leaves to the permit writer’s scientific and technical judgment how much certainty is necessary.
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600 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
tions of non-point sources of nitrogen and other municipal waste treatment plants are simply insufficient to overcome the substantial weight of scientific evidence in the record that, even if the precise relative contribution is uncertain, the Dis- trict’s discharges are a significant contributor of nitrogen to the Blackstone River, which discharges to the Seekonk and Providence Rivers, thereby contributing to those rivers’ nitrogen-driven eutrophication problem that frequently violates Rhode Island’s water quality criteria. The Region specifically found as follows:
Numerous scientific studies conducted over the last 15 –
20 years have documented that excessive discharges of ni-
trogen are causing the impairment and wastewater dis-
charges are the dominant source of nitrogen. See also Nu-
trient and Bacteria Pollution Panel, Initial Report,
Governor’s Narragansett Bay and Watershed Planning
Commission, March 2, 2004 at page 3 (summarizing stud-
ies). The UBWPAD – with a permitted design flow of 56
MGD – is one of the largest sources of nitrogen to Narra-
gansett Bay. The loadings data utilized in DEM’s 2004
study indicate that UBWPAD represented approximately
64% of the nitrogen load discharged to the Blackstone
River from municipal wastewater treatment facilities for
the period of time considered in the study. In addition, the
Blackstone River discharges into the relatively poorly
flushed areas at the head of the Upper Bay, which has ex-
acerbated the impact of nutrients. Based on review of
these various reports and studies of impairments in the
Upper Bay and sources and loadings of nutrients, EPA
concluded that discharges of nitrogen from the UBWPAD
facility are causing or have the reasonable potential to
cause or contribute to violations of Rhode Island’s water
quality standards.
RTC at 80. The District does not cite any data or scientific analysis that would contradict the data and analysis the Region relied upon.
The District is simply wrong when it asserts both that the Region did not
identify an effects based relationship between nitrogen and eutrophication and that the Region did not “link the relationship to any impairment of designated uses in the receiving water or downstream.” Dist. Reply at 3. The Region provided an extensive explanation of the impact of eutrophication on “the composition of fish and wildlife,” interference with “propagation of fish and wildlife,” fish kills, and impaired growth of eel grass. Fact Sheet at 12; RTC at 21, 27, 29-30, 80; accord RTC at 114 (“The nitrogen reductions required through this permit will have sub- stantial environmental benefits, including significant reductions in algal growth
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 601
and associated dissolved oxygen impairments that have severely impaired the marine fish community and recreational use of Narragansett Bay.”).
A complete assessment of, and development of a mathematical model that
precisely predicts the fate and transport of nitrogen throughout the Narragansett Bay system is not necessary for the Region to have had a sufficient scientific basis for its finding that the District’s nitrogen discharges contribute to, or have the reasonable potential to cause, the undisputed water quality impairments observed in the Seekonk River, and further downstream in the Providence River and Narra- gansett Bay.30 Accordingly, the District has failed to sustain its burden to show clear error or abuse of discretion in the Region’s determination that the total nitro- gen in the District’s discharges causes, contributes to, or has the reasonable poten- tial to cause violations of Rhode Island’s narrative water quality criteria.
2. The Total Nitrogen Discharge Limit of 5.0 mg/l Is Supported by
the Record
When a pollutant discharge is found to cause, have the reasonable potential
to cause, or contribute to exceedances of numeric or narrative state water quality criteria, as the Region found for the District’s total nitrogen discharges in the pre- sent case, then the permit writer must include in the permit a water quality-based effluent limit determined as provided in 40 C.F.R. § 122.44(d)(1)(iii)-(vii).31 Sub- paragraph (vi) provides three alternative methods for establishing the specific per-
30 The District also argues that, while the Region acknowledges that other sources are contrib-
uting to nutrient loadings, the Region does not account for those other sources. Dist. Supp. Pet. at 13, 24-25. The District states further, “the Region makes no attempt to determine how various nutrient loadings from various sources would affect the causal factors, and how the response of these causal factors impairs designated uses.” Dist. Reply at 3. The District argues that “these other sources * * * prevent the system from meeting standards.” Dist. Supp. Pet. at 13. As explained in Attleboro, “section 301(b)(1)(C) requires each point source to achieve effluent limitations necessary to meet water quality standards and does not make allowance for failure of other sources to comply.” Attleboro, slip op. at 43 (citing In re Blue Plains Sewage Treatment Plant, 1 E.A.D. 531, 540 (Adm’r 1979), 14 E.A.D. at
- Accordingly, the District’s arguments regarding discharge levels of other sources or point sources
do not show clear error in the Region’s decision and do not provide justification for delay in imposing more stringent limits on the District. Id.
31 To assist permit issuers in their development of water quality-based effluent limits, EPA
published technical guidance documents that propose methods for classifying, sampling, analyzing, and calculating relevant parameters. See, e.g., Office of Water, U.S. EPA, EPA 822-B-01-015, Ambi- ent Water Quality Criteria Recommendations: Rivers and Streams in Nutrient Ecoregion 8 (Dec. 2001); Office of Water & Office of Science & Technology, U.S. EPA, EPA-822-B-00-002, Nutrient Criteria Technical Guidance Manual: Rivers and Streams (July 2000); Office of Water Regulations & Standards, U.S. EPA, EPA 440/5-86-001, Quality Criteria for Water: 1986 (May 1, 1986) (the “Gold Book”); Memorandum from Geoffrey Grubbs, Director, Office of Science & Technology, U.S. EPA, to Water Directors, EPA Regions 1-10, et al. (Nov. 14, 2001); Office of Water, U.S. EPA, EPA-833-B-96-003, U.S. EPA NPDES Permit Writers’ Manual, chs. 6, 10.2, at 87-114, 176-178 (Dec. 1996).
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602 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
mit limit in circumstances where the state’s water quality standard is narrative, not numeric, as is the case here. Id. § 122.44(d)(1)(vi)(A)-(C).32
In the present case, the Region determined the Permit’s total nitrogen efflu-
ent limit of 5.0 mg/l applying paragraphs (A) and (B) using a wide range of rele- vant information, including EPA technical guidance, state laws and policies appli- cable to the narrative water quality criterion, and site-specific studies. RTC at 28,
-
The Region paid particular attention to the 2004 RIDEM Report. Fact Sheet
at 12.33 This Report explains that, because the Rhode Island Department of Envi- ronmental Management was not able to develop a computer-based numerical model for the Providence and Seekonk Rivers, the Report focused instead on the results of, and adjustments to, a physical model experiment conducted in the early 1980s by the Marine Ecosystems Research Laboratory (“MERL”) at the Univer- sity of Rhode Island. 2004 RIDEM Report at 1. The MERL experiment was de- signed to study the relationship between nitrogen and phosphorus loading and va-32 Section 122.44(d)(1)(vi) provides:
Where a State has not established a water quality criterion for a specific chemical pollutant that is present in an effluent at a concentration that causes, has the reasonable potential to cause, or contributes to an excur- sion above a narrative criterion within an applicable State water quality standard, the permitting authority must establish effluent limits using one or more of the following options: (A) Establish effluent limits using a calculated numeric water quality criterion for the pollutant which the permitting authority demonstrates will attain and maintain applicable narrative water quality criteria and will fully protect the designated use. Such a criterion may be derived using a proposed State criterion, or an explicit State policy or regulation interpreting its narrative water quality criterion, supplemented with other relevant information which may include: EPA’s Water Quality Standards Handbook, October 1983, risk assessment data, exposure data, informa- tion about the pollutant from the Food and Drug Administration, and current EPA criteria documents; or (B) Establish effluent limits on a case-by-case basis, using EPA’s water quality criteria, published under section 304(a) of the CWA, supple- mented where necessary by other relevant information; or (C) Establish effluent limitations on an indicator parameter for the pollu- tant of concern * * * .
40 C.F.R. § 122.44(d)(1)(vi)(A)-(C).
33 The 2004 RIDEM Report both provides a review of the available science and provides
RIDEM’s interpretation of what total nitrogen limits and reductions are required to achieve compliance with Rhode Island water quality standards. That report generally recommends a total nitrogen limit of 5.0 mg/l for the larger treatment plants discharging into the portions of the Narragansett Bay and river system that are most impaired. Brief of Amicus Curiae Rhode Island Department of Environmental Management (“RIDEM Br.”) at 5.
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 603
rious response variables in a tank system structured to model the Narragansett Bay system. Fact Sheet at 12-13; RTC at 29. Based on its analysis of this informa- tion and other information in the record, the Region determined that “a seasonal reduction of nitrogen to no more than 5.0 mg/l is required at the [District’s Treat- ment Plant] in order to achieve water quality standards.” Fact Sheet at 14. The Region specifically determined that “the limits on total nitrogen are necessary to ensure compliance with Rhode Island Water Quality Standards.” RTC at 19. The Region recognized that there are uncertainties in its analysis, but concluded that “[t]here is no realistic likelihood, * * * that water quality standards could be met with a less stringent nitrogen limit than the one proposed.” Fact Sheet at 14; see also RTC 29-32, 50, 94. The Region also stated that “no less stringent limit could be imposed that would still ensure compliance with water quality standards in light of the severe existing eutrophic condition in the Providence/Seekonk River system, indicating that it is significantly overallocated for nitrogen.” RTC at 50.34
The District challenges this determination, arguing that the Region chose
the limit “without sufficient technical basis to determine whether such limit is appropriate and necessary to address impairments to waterways within Massachu- setts or Rhode Island.” Dist. Supp. Pet. at 24; see also id. at 14. The District con- tends that setting a water quality-based effluent limit for total nitrogen should be “deferred to the future completion of a total maximum daily load (‘TMDL’).” Dist. Supp. Pet. at 11. The District also challenges the Region’s reliance on the MERL experiment and the District argues that the Region failed to adequately make nu- merous adjustments to account for differences between the physical model and the actual Rivers’ conditions. Dist. Supp. Pet. at 19-27. In contrast, CLF chal- lenges the Permit’s total nitrogen limit as not sufficiently stringent to ensure com- pliance with water quality standards.
34 In the Fact Sheet, the Region stated, “[b]ased on the available evidence, including nitrogen
loadings from the [District’s Treatment Plant] and the discharge of the Blackstone River to the Seek- onk River, where the greatest impacts have been measured, EPA has concluded that a seasonal reduc- tion of nitrogen to no more than 5.0 mg/l is required at the [District’s] facility in order to achieve water quality standards.” Fact Sheet at 14. The Region also stated in its response to comments that “[t]he reductions required at the [District’s] facility through this permit in conjunction with reductions at other facilities * * * and improvements are necessary to address the ongoing severe impairments to the marine fish community and to restore the recreational use of Narragansett Bay.” RTC at 30. Fur- ther, “[o]f the various loading scenarios available to it, EPA determined that a concentration-based limit of 5 mg/l would be necessary to address the excessive loading from the facility, which both EPA and Rhode Island have determined are contributing to ongoing water quality impairments in the Narra- gansett Bay system.” Id. at 49. “EPA determined that a limit of 5.0 mg/l total nitrogen for [the Dis- trict’s] discharge is necessary in order to achieve water quality standards. Id. at 54. ”The Region has concluded, however, that a nitrogen limit at least [as] stringent as 5.0 mg/l for the [District’s Treatment Plant] is necessary to prevent further degradation of the Bay.“ Id. at 61.
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604 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
This subsection first looks, in Part (a), at the question whether the District
has shown clear error or an abuse of discretion in the Region’s decision to move forward with establishing the limit at this time without waiting for additional sci- entific data and analysis, including a TMDL. Part (b), next, considers whether the administrative record supports the Region’s decision setting the limit at 5.0 mg/l, and Part (c) looks at the converse question, whether the record requires a more stringent limit.
a. Further Delay in Setting the Limit Is Not Justified
The District argues that the Permit’s total nitrogen limit “should be based on
accepted, reliable data and analysis, or if such is not currently available, deferred to the future completion of a total maximum daily load (‘TMDL’).” Dist. Supp. Pet. at 11. Although the District clearly states that it “does not contest” the Re- gion’s statement that the Region is not required to wait for a TMDL to be devel- oped, the District nevertheless argues that the Region should have waited for a TMDL. For example, the District states as follows:
The results of the 1981-84 MERL laboratory tank studies
are not an acceptable substitute for a TMDL to establish
total nitrogen effluent limits. RIDEM should complete the
federally-required TMDL before Region 1 imposes the
proposed total nitrogen permit modification.
Dist. Supp. Pet. at 25. The District also contends that the technical analysis re- quired for establishing numeric permit limits under section 122.44(d)(1)(vi) is the same as required for establishing a TMDL or wasteload allocation and that, there- fore, the Region committed clear error by not waiting for the development of more certain science capable of establishing a TMDL or wasteload allocation for the Narragansett Bay system. Id. at 15.
The Board rejects any suggestion that the Region’s decision to proceed
without waiting to develop a TMDL or wasteload allocation was clear error or an abuse of discretion. The regulations specifically contemplate that permit issuers will establish numeric permit limits when there is no TMDL or wasteload alloca- tion. Subsection (vii) requires the permitting authority to “ensure” that effluent limits are consistent with “any available wasteload allocation.” 40 C.F.R.
§ 122.44(d)(1)(vii) (emphasis added). By using the phrase “any available,” the regulations expressly recognize that a TMDL or wasteload allocation may not be available.
This reading of the regulation is compelled by the Agency’s interpretation
set forth in the preamble to 40 C.F.R. § 122.44(d)(1), which expressly outlines the relationship between subsections (vi) governing the setting of limits based on nar-
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 605
rative criteria and (vii), which requires consistency with “any available” waste load allocation or TMDL:
The final point about paragraph (vi) is that, in the major-
ity of cases where paragraph (vi) applies, waste load allo-
cations and total maximum daily loads will not be availa-
ble for the pollutant of concern. Nonetheless, any effluent
limit derived under paragraph (vi) must satisfy the re-
quirements of paragraph (vii). Paragraph (vii) requires
that all water quality-based effluent limitations comply
with “appropriate water quality standards,” and be consis-
tent with “available” waste load allocations. Thus for the
purposes of complying with paragraph (vii), where a was-
teload allocation is unavailable, effluent limits derived
under paragraph (vi) must comply with narrative water
quality criteria and other applicable water quality
standards.
54 Fed. Reg. 23,868, 23,878 (June 2, 1989) (emphases added). This formal Agency interpretation set forth in the preamble at the time the regulation was promulgated expresses the Agency’s expectation that, while wasteload allocations may not uniformly be available, effluent limits must be established without wait- ing for a TMDL or wasteload allocation.
There also is no clear error in the Region’s conclusion that the statute does
not contemplate a delay in processing applications for permit renewal to wait for development of a wasteload allocation or TMDL. The Region stated that “[t]he clear intent of the statute is to ensure that permit requirements are updated on a regular basis rather than left in effect, unexamined and unchanged for long peri- ods of time.” RTC at 31. The Region correctly observed that “[t]he CWA and EPA’s regulations require that permits be issued for fixed periods of time not to exceed five years.” RTC at 31 (citing 33 U.S.C. §§ 1342(a)(3), (b)(1)(B); 40 C.F.R. § 12.46(a)). Notably, the statute states an ambitious goal of eliminating pollution discharges by 1985, CWA § 101(a)(1), 33 U.S.C. § 1251(a), and it gen- erally makes the discharge of any pollutant unlawful, and requires there to “be achieved” “not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards.” CWA § 301(a), (b)(1)(C), 33 U.S.C. § 1311(a), (b)(1)(C). The statute also prohibits the issuance of a permit “[i]f the imposition of conditions cannot insure such compliance” with applicable water quality requirements of affected states. CWA § 402(a)(2), 33 U.S.C.
§ 1341(a)(2).
The District has cited no law, regulation, or Agency policy that would allow
a permit application to remain pending for an indefinite, unlimited extension of time to allow additional scientific data or analysis to be developed to support the
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applicant’s claim that its discharges will not violate the water quality standards of affected states. To the contrary, scientific uncertainty is not a basis for delay in issuing an NPDES permit. The Board has specifically held that “[i]n the face of unavoidable scientific uncertainty, the Region is authorized, if not required, to exercise reasonable discretion and judgment.” In re Dominion Energy Brayton Point, LLC, 13 E.A.D. 407, 426 (EAB 2007).
The federal courts in reviewing Agency decisions have similarly recognized
that scientific uncertainty is not a bar to administrative decisionmaking: “We do not demand certainty where there is none. There may be no strong reason for choosing [a particular numerical standard] rather than a somewhat higher or lower number. If so, we will uphold the agency’s choice of a numerical standard if it is within a ‘zone of reasonableness.’” Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 525 (D.C. Cir. 1983) (citation omitted); see also Hercules, Inc. v. EPA, 598 F.2d 91, 116-17 (D.C. Cir. 1978). More than three decades ago, the D.C. Circuit aptly described the CWA’s balance when confronted with a diffi- cult situation and the obligation to eliminate water quality impairments: “EPA may issue permits with conditions designed to reduce the level of effluent dis- charges to acceptable levels. This may well mean opting for a gross reduction in pollutant discharge rather than the fine-tuning suggested by numerical limitations. But this ambitious statute is not hospitable to the concept that the appropriate response to a difficult pollution problem is not to try at all.” Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1380 (D.C. Cir. 1977) (emphasis added) (finding unlawful a rule that would have exempted certain discharges from permitting requirements based on the difficulty in setting limits). Here, the Dis- trict’s “wait and see” approach would allow the Distirct to continue discharging without any limit on total nitrogen discharges – effectively abdicating the respon- sibility to set permit limits when faced with difficulty establishing the limit.
The Region also explained that “[i]t is not appropriate to adopt a ‘wait and
see’ approach” in the circumstances of this case where the record demonstrates “there is no reasonable likelihood that water quality standards relative to eutrophi- cation will be achieved with less stringent limits.” RTC at 32. Further, “[w]ith regard to the Upper Narragansett Bay, for the past decade or more RIDEM ex- pended significant resources in an attempt to simulate the estuary through the use of mathematical models and had concluded that the system was too complicated to simulate with available mathematical models.” RTC at 96.35 The Region also explained that its “decision to move forward now with a nitrogen limit” takes into
35 The Board rejects the District argument that merely because the Region referred to the
so-called Kester model, the Region in effect acknowledged that a useful model for the rivers exists. Dist. Supp. Pet. at 27. As the Board stated in Attleboro, there is “no indication that the Kester Model will adequately address nutrient impacts or that it would be helpful in deriving nitrogen permit limits.” Attleboro, 14 E.A.D. at 415.
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 607
consideration “the existing severe nitrogen-driven cultural eutrophication in the receiving waters and the tendency for nitrogen to not only exacerbate existing water quality impairments but to persist in the environment in a way that contrib- utes to future water quality problems. In light of these factors, delay in establish- ing permit limits is inappropriate.” RTC at 96. As described below, the Region based its determination to set a total nitrogen limit of 5.0 mg/l on a substantial body of record evidence.
All of these reasons – the regulation’s direction to establish water qual-
ity-based effluent limits even in the absence of a TMDL or wasteload allocation, the statute’s directive and policy to move forward expeditiously to address pollu- tion problems in the Nation’s waters, and the specific facts here regarding the severe impairment of the affected waters and the lack of current ability to mathe- matically model the fate and transport of nitrogen in those waters – are more than sufficient to defeat the District’s argument that the Region committed clear error or abuse of discretion in declining to wait any longer before establishing the Per- mit’s water quality-based effluent limit for total nitrogen.
b. The Data and Analysis in the Record Support a 5.0 mg/l
Total Nitrogen Limit
This part considers the District’s and MassDEP’s challenges to the specific
information, data, and analysis the Region used to explain its decision setting the Permit’s water quality-based effluent limit for total nitrogen at 5.0 mg/l. The Dis- trict argues that the Region clearly erred in utilizing the results of the MERL physical model experiment, because the MERL experiment was designed to model the Narragansett Bay and, according to the District, is not appropriate to be used as a physical model of the Providence and Seekonk Rivers. Dist. Supp. Pet. at 19-27. The District argues that the differences between the physical model and the Rivers demonstrate that it was not appropriate for the Region to consider the MERL data. The District further argues that, even if use of the MERL model were appropriate, the Region did not make appropriate and sufficient adjustments to account for the differences. Id. Specifically, the District argues that “river sys- tems are entirely different than bays” and “the conditions in the Providence and Seekonk River are materially different than the conditions under which the exper- iments were conducted.” Id. at 19-20. The District identifies concerns regarding attenuation and flushing that it believes the Region failed to adequately take into account. MassDEP raises similar arguments. In short, the District and MassDEP argue that the imprecision and uncertainty in the data and analysis in the record preclude the Region’s decision setting the Permit’s limit at 5.0 mg/l and require a remand. As explained below, none of these arguments demonstrate clear error in the Region’s decision.
In general, the selection of representative data for the analysis under section
122.44(d)(1) is a technical judgment that falls within the permit issuer’s discretion
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608 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
and technical expertise. See In re Wash. Aqueduct Water Supply Sys., 11 E.A.D. 565, 583 (EAB 2004); accord American Iron & Steel Inst. v. EPA, 115 F.3d 979, 1006 (D.C. Cir. 1997). Similarily, the use of a physical model, instead of a mathe- matical model or other site-specific model, to derive effluent limitations is a tech- nical judgment that also falls within the Region’s discretion and expertise. Att- leboro, 14 E.A.D at 411. In addition, the applicable regulation in the present case authorizes the Region to consider “relevant” information in establishing numeric permit limits to achieve narrative state water quality criteria. 44 C.F.R.
§ 122.44(d)(1)(vi)(A), (B). As such, the petitioner bears a particularly heavy bur- den to establish clear error or an abuse of discretion because the Board generally defers to the permit issuer on questions of technical judgment. Attleboro, 14 E.A.D at 411; Dominion, 12 E.A.D. at 510; In re Peabody W. Coal Co., 12 E.A.D. 22, 33-34 (EAB 2005); In re Teck Cominco Alaska, Inc., 11 E.A.D. 457, 473 (EAB 2004).
For technical issues, the Board determines whether the record demonstrates
that the permit issuer duly considered the issues raised in the comments and whether the approach ultimately adopted by the permit issuer is rational in light of all the information in the record. Attleboro, 14 E.A.D at 411; Dominion, 12 E.A.D. at 510; In re Gov’t of D.C. Mun. Separate Storm Sewer Sys., 10 E.A.D. 323, 348 (EAB 2002) (“DC MS4”); NE Hub, 7 E.A.D. at 568. If the Board is 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, the Board typically will defer to the permit issuer. NE Hub, 7 E.A.D. at 568. Thus, the question here is whether the Region explained its determination to rely on the MERL data and whether the Region’s analysis is rational and supported in the record.
In its response to comments, the Region rejected the suggestion that it can-
not use the MERL experiment because it is a physical model, not mathematical: “[t]hat the MERL tank experiments were a physical rather than mathematical model and could not completely simulate the complex natural setting of Narra- gansett Bay does not undermine the relevance and validity of the model to the nitrogen limits here.” RTC at 96. The Region’s position in this regard is consistent with EPA policy:
There are many other examples of empirical models used
to relate environmental forcing functions to ecological re-
sponses, especially nutrient load/concentration and re-
sponse relationships. Much of the professional aquatic
ecological literature reports on use of empirical models
(e.g., Chapters 2 and 3). Empirical models have their limi-
tations, but when judiciously applied, they offer a highly
useful tool to water quality managers.
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 609
Office of Water, U.S. EPA, EPA-822-B-01-003, Nutrient Criteria Technical Gui- dance Manual, Estuarine and Coastal Marine Waters at 9-2 (Oct. 2001). Empiri- cal modeling is a simplified representation of a system, such as the MERL physi- cal model, from which observational or experimental data is collected.
The Region also explained that the MERL data is particularly relevant here
to understanding the extent of existing nitrogen impairment and required nitrogen reductions:
The basic relationship demonstrated by the MERL tank
experiments between the primary causal and response
variables relative to eutrophication corresponds to what is
actually occurring in the Providence/Seekonk River sys-
tem. Both the MERL tank experiments and the data from
the Providence/Seekonk River system indicate a clear cor-
relation between nitrogen loadings, dissolved oxygen im-
pairment and chlorophyll a levels.
RTC at 48.
The Region explained the observed consistency between the MERL experi-
ment and the conditions in the Providence and Seekonk Rivers with respect to dissolved oxygen (“DO”) as follows:
Low dissolved oxygen levels, as well as supersaturated
dissolved oxygen levels, are indicators of cultural eu-
trophication. Figures 1 through 3 in the Evaluation of Ni-
trogen Targets and WWTF Load Reductions for the Prov-
idence and Seekonk Rivers show the dissolved oxygen
measurements taken from MERL tank experiment and
demonstrate that the range and variability of DO increases
with increased nutrient loading. As described in the text
of the report, and shown in Figure 13, the DO in the Seek-
onk River showed patterns of DO variability similar to
that of the high enrichment tanks in the MERL
experiments.
Id. The Region explained the observed consistency between the MERL experi- ment and the conditions in the Providence and Seekonk Rivers with respect to chlorophyll a as follows:
Phytoplankton, as measured by chlorophyll a levels, is an
even stronger response indicator of cultural eutrophication
than DO. Coastal areas without high nutrient loads are ex-
pected to have chlorophyll a levels in the 1 to 3 g/l range
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610 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
* * * . Massachusetts has identified chlorophyll a levels
of less than 3 g/l as representing excellent water quality
and chlorophyll a levels similar to the levels in the Provi-
dence/Seekonk River system as representing significantly
impaired waters * * * . Peak chlorophyll a levels in the
Providence/Seekonk River system have exceeded 200 g/l
* * * . The MERL tank experiments showed a correla-
tion between nitrogen loading rates and chlorophyll a
levels * * * . These results were consistent with RIDEM
data from 1995-96, which indicate that mean
photoplankton chlorophyll a levels in the three Seekonk
River monitoring stations ranged from 14 g/l to 28 g/l,
with the highest levels in the upper reaches of the river
and the lowest levels in the lower reaches of the river
* * * . These chlorophyll a levels correlate with total ni-
trogen levels and with the dissolved inorganic nitrogen
levels * * * .
Id. (citations omitted). There is no clear error in these reasons for considering the MERL data in the Region’s analysis of an appropriate effluent limitation for nitro- gen given the observed consistency between nitrogen levels and the response vari- ables of DO and chlorophyll a. Neither the District, nor MassDEP, directly chal- lenge the Region’s articulated reasons for utilizing the MERL data. Instead, both the District and MassDEP argue that the MERL experiment did not model a num- ber of River features that they contend would impact concentration of nitrogen in the River environment, namely dilution, attenuation, and contribution of other sources. As explained below, the District’s and MassDEP’s arguments are not suf- ficient to show that the Region committed clear error or abused its discretion.
Both the District and MassDEP argue that the MERL experiment used a
“flushing rate” – the rate at which water flows in and out of the system – that is different from the Rivers’ flushing rate and that understates dilution of nitrogen discharges in the River environment. Dist. Supp. Pet. at 21-22, 24; MassDEP Supp. Pet. at 14. Both observe that the Rivers flush at a rate of several days – that is, the total volume of inflow and outflow equals the Rivers’ volume in several days time – whereas the MERL experiment used a flushing rate of 27 days. Dist. Supp. Pet. at 21-22, 24; MassDEP Supp. Pet. at 14. While MassDEP does not explain how it believes a different flushing rate would impact nitrogen-laden dis- charges in the Rivers, the District attempts such an explanation in a footnote. Dist. Supp. Pet. at 21 n.3. As described below, the District’s explanation, however, is unpersuasive as an effort to demonstrate that the MERL data is irrelevant and that the Region did not take this difference into account.
The District explains that the flushing rate impacts the dilution of nitro-
gen-laden discharges – the District states that the interaction in the MERL experi-
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 611
ment between flushing rate of inflow water and grams of nitrogen added to the tank under the highest level, referred to as the 32x loading, would produce an ambient nitrogen concentration at equilibrium of 2.68 mg/l. Dist. Supp. Pet. at 21 n.3 (calculating the equilibrium point under the MERL experiment 32x loading). The District asserts that a more rapid flushing rate will produce a lower equilib- rium nitrogen concentration. Id. That statement is correct for an experiment where a more rapid flushing rate is achieved by mixing the same mass of nitrogen with a higher volume of inflow water, as the District describes in its example. Id. In the District’s example, the lower equilibrium is a direct consequence of a lower con- centration of nitrogen in the inflow (the nitrogen is diluted by a higher volume of inflow). The District has not, however, identified a source of inflow water that will dilute the District’s discharge to produce a lower ambient concentration. As noted above, under low flow conditions, the District’s discharge dominates the Backstone River’s flow.36
Significantly, the Permit’s discharge concentration limit of 5.0 mg/l is al-
most two times higher than the concentration level the District calculates was pre- sent in the MERL experiment’s most severely impaired 32x tanks. The District’s argument does not demonstrate how the Rivers’ flushing rate will dilute the 5.0 mg/l discharge concentration to produce an ambient concentration low enough at the point of impact to achieve the DO and chlorophyll a levels that would be consistent with a healthy marine environment. The MERL experiment at both the 32x loading and at the lower 16x loading produced ambient nitrogen concentra- tions that were correlated with DO and chlorophyll a levels consistent with a se- verely impaired waterway. Compare 2004 RIDEM Report at 1-8 with RTC at 48 (discussing and citing Office of Water, US EPA, EPA-822-B-01-003, Nutrient Criteria Technical Guidance Manual: Estuarine and Coastal Marine Waters (Oct. 2001), and MassDEP, Univ. of Mass. Dartmouth School of Marine Science and Tech., Massachusetts Estuaries Project – Site-Specific Nitrogen Thresholds for Southeastern Massachusetts Embayments: Critical Indicators (Interim Report, July 21, 2003)).
Both the District and MassDEP contend that the 2004 RIDEM Report iden-
tified an inconsistency between the MERL data and the observed River conditions based on flushing rate. See Dist. Supp. Pet. at 22; MassDEP Sup. Pet at 14. The 2004 RIDEM Report noted that mean dissolved inorganic nitrogen (“DIN”) ob- served in 1995/1996 River data was lower than would be expected from the mean MERL data. See 2004 RIDEM Report at 12. While MassDEP points to this incon- sistency as showing that the MERL experiment failed to “account for real-world variables,” MassDEP Supp. Pet. at 14, the District argues that the MERL data
36 It is undisputed that in low flow conditions, the District’s Treatment Plant, with a design
capacity of 56 million gallons per day, dominates the Blackstone River’s flow of 5.5 million gallons per day. Fact Sheet at 2.
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612 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
“substantially overstate the impact of the 1995/1996 loading” and that the lower observed DIN “is entirely consistent with more rapid flushing times of the River systems, which result in far lower ambient concentrations.” Dist. Supp. Pet. at 22.
These arguments, however, do not address the 2004 RIDEM Report’s obser-
vation that the lower River DIN data may be attributable to factors other than flushing, such as DIN uptake by macroalgae and denitrification in the bottom wa- ters. 2004 RIDEM Report at 12. The Region, in its response to comments, also identified other explanations for the discrepancy in DIN values, including “strati- fication,” RTC at 49, and the 2004 RIDEM Report’s discussion of the Rivers’ flushing rate in low flow conditions, 2004 RIDEM Report at 12. More important, the District’s and MassDEP’s arguments do not show error in the Region’s reasons for finding the MERL data relevant, namely the consistency between the MERL data and Rivers’ data with respect to the correlation between nitrogen levels and DO and chlorophyll a. RTC at 48. Finally, the Region acknowledged that differ- ences in flushing rate is one source of uncertainty that warranted rejecting a per- mit limit based on the limit of technology, 3.0 mg/l, and setting the limit at the less stringent level of 5.0 mg/l. RTC at 49. In short, the arguments do not show clear error in the Region’s decision in setting the 5.0 mg/l limit, to take some uncertainty on flushing rates into account.
The District and MassDEP argue that the Region made errors in the calcula-
tion of attenuation – the rate at which nitrogen is lost in the river flow between the point of discharge and where the water impairing impact is observed. MassDEP Sup. Pet. at 14-15; Dist. Supp. Pet. at 32. As explained in Attleboro, there is no entitlement for a permit limit to be reduced on account of attenuation. Attleboro, 14 E.A.D. at 425-26. In particular, the District mistakenly assumes that the Re- gion determined that water quality compliance will be achieved by “an equivalent 5 mg/l discharge at the mouth of the Blackstone River” and that the concentration in the District’s discharges can be adjusted upward to account for the attenuation that occurs in the River. Dist. Supp. Pet. at 31. The Region made no such determi- nation, and the District’s assumption is contradicted by evidence in the record. Specifically, the Region explained as follows:
Both the Woonsocket and UBWPAD discharges enter
Upper Narragansett Bay through the headwaters of the
Seekonk River, which is the most impaired section of Up-
per Narragansett Bay. The RIDEM 2004 study indicates
that this segment of the Bay currently receives nitrogen
loads at a rate 24 times higher than the average Bay-wide
loading. The limit EPA believes necessary to attain water
quality standards (i.e., 5.0 mg/l) will result in a loading to
the Seekonk River of 6.5 times the Bay-wide loading.
UBWPAD is the dominant source of nitrogen to the
Blackstone, even after accounting for attenuation, from
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 613
the Blackstone to the Seekonk. In addition, the estimated
nitrogen delivery factor for the Blackstone River will in-
crease in the future as actions are taken to address phos-
phorus driven eutrophication.
RTC at 54. The Region’s analysis speaks to how much the District’s total nitrogen discharges must be reduced in order to address the identified water quality problems. Notably, the 2004 RIDEM Report indicates significant eutrophication in the Seekonk and Providence Rivers, as evidenced by low DO and high chloro- phyll a mean values, at a mean total nitrogen concentration in the River ranging from only 0.63 mg/l to 1.46 mg/l. 2004 RIDEM Report at 12, tbl.3. The District’s and MassDEP’s arguments are simply insufficient to establish that the concentra- tion of total nitrogen in the District’s discharges can be higher than 5.0 mg/l at the point of discharge and not cause or contribute to nitrogen-driven eutrophication violations in the Seekonk and Providence Rivers when significant impairment was observed at ambient concentrations in the River of 0.63 mg/l to 1.46 mg/l.
Moreover, the District and the Region have not identified any record evi-
dence sufficient to show clear error in the Region’s statement that “the current evidence indicates that attenuation of nitrogen in the Blackstone River is small and further reductions in phosphorus-driven eutrophication levels in the Black- stone are likely to result in even lower nitrogen attenuation rates in the future.” RTC at 30. More specifically, the Region explained as follows:
Significantly, the second analysis showed that as phos-
phorus discharges to the river are reduced, the delivery of
nitrogen increased. The reason for the reduced attenuation
for nitrogen is that phosphorus-driven algal growth is the
primary cause of nitrogen uptake. Given that the two larg-
est sources of phosphorus to the River (UBWPAD and
Woonsocket) are both proposed to have limits of 0.1 mg/l
total phosphorus (which are more stringent than the 0.75
mg/l limit on which RIDEM’s analysis was based) and
that other point sources will also be required to reduce
phosphorus loadings, a further increase in the delivery of
nitrogen to Narragansett Bay can be expected.
RTC at 45-46. The District and MassDEP have not pointed to any record evidence showing the Region is clearly wrong in stating that there will be less nitrogen attenuation as phosporus discharges are reduced. In addition, the Board concludes that MassDEP’s identification of a temporal difference between two data sets the Region used in its attenuation analysis, MassDEP Supp. Pet. at 14-15, does not show clear error in the Region’s determination that the data sets are representa- tive. The selection of representative data for the analysis is a technical judgment
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614 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
that falls within the permit issuer’s discretion and technical expertise. In re Wash. Aqueduct Water Supply Sys., 11 E.A.D. 565, 583 (EAB 2004).
The question before the Board in this appeal is not whether the Region, in
taking differences between the model and the natural environment into account, including dilution and attenuation, could have selected a somewhat higher or lower number than 5.0 mg/l, but rather the question is whether the Region’s deci- sion falls so far outside a zone of reasonableness that it constitutes clear error or abuse of discretion. Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 525 (D.C. Cir. 1983) (“We do not demand certainty where there is none. There may be no strong reason for choosing [a particular numerical stan- dard] rather than a somewhat higher or lower number. If so, we will uphold the agency’s choice of a numerical standard if it is within a ‘zone of reasonable- ness.’”); see also Hercules, Inc. v. EPA, 598 F.2d 91, 116-17 (D.C. Cir. 1978). Here, the Region explained that “[i]n establishing the nitrogen limit in the permit, EPA took into account uncertainties in extrapolating the physical model to a com- plex, natural setting such as Upper Narragansett Bay.” RTC at 30. The Region explained further, “[b]ecause the physical model does not generate a definitive level of nitrogen control that can be applied to a real world discharge, but instead a range of loading scenarios which are subject to some scientific uncertainty, EPA was required to exercise its technical expertise and scientific judgment based on the available evidence when translating these laboratory results and establishing the permit limit.” RTC at 49. As explained above, the District’s and MassDEP’s arguments fail to show that the Region’s use of the MERL data bear no rational relationship to the natural environment of the Narragansett Bay and Providence and Seekonk Rivers, or that the Region’s adjustments are clearly erroneous. Co- lumbia Falls Aluminum Co. v. EPA, 139 F.3d 914, 923 (D.C. Cir. 1998) (“An agency’s use of a model is arbitrary if that model ‘bears no rational relationship to the reality it purports to represent.’” (quoting Am. Iron and Steel, 115 F.3d at 1005)); Chemical Mfrs. Ass’n v. EPA, 28 F.3d 1259, 1265 (D.C. Cir. 1994).
As highlighted by CLF’s arguments discussed below in Part II.D.2.c(ii), but
for concerns regarding uncertainty in the analysis, the 2004 RIDEM Report would have concluded that reducing nitrogen discharges to the limit of technology, or 3.0 mg/l, would be required. The Region chose to take the uncertainty into ac- count by Permitting the District’s discharges at a concentration that is 1.67 times higher than the limit of technology. The Board finds unpersuasive the District and MassDEP’s arguments that the uncertainty and imprecision in the Region’s analy- sis precludes the Region’s decision and requires a remand, thereby allowing the District to continue discharging without any limit on total nitrogen. Long ago, the D.C. Circuit interpreted the CWA as authorizing EPA, in setting permit limits, to require “a gross reduction in pollutant discharges rather than the fine-tuning sug- gested by numerical limitations” because “this ambitious statute is not hospitable to the concept that the appropriate response to a difficult pollution problem is not to try at all.” NRDC v. Costle, 568 F.2d 1369, 1380 (D.C. Cir. 1977). The Re-
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 615
gion’s decision is consistent with Rhode Island’s interpretation of what is required to comply with its water quality standards. RTC at 50; 2004 RIDEM Report at 28. Although the Region’s decision setting the limit at 5.0 mg/l in the present case is based on an analysis that does not render a precise numerical calculation and has some uncertainty, the District and MassDEP have not shown that the Region’s determination is clearly erroneous or an abuse of discretion. Accordingly, the Board denies review of the Region’s decision that 5.0 mg/l is the appropriate nu- merical value for the total nitrogen limit.
c. The Region Made an Adequate Finding that the 5.0 mg/l
Limit Will “Ensure” Compliance with Water Quality
Standards
CLF argues that the Permit’s total nitrogen limit of 5.0 mg/l is not suffi-
ciently stringent for the months of May through October and also that a numeric limit must be applied year-round. Conservation Law Foundation Petition (“CLF Pet.”) at 15-16.37 For the following reasons, CLF has not demonstrated clear error or abuse of discretion in the Region’s determination that the Permit’s total nitro- gen limit is sufficient to ensure compliance with water quality standards. The analysis begins by considering whether the Region made an adequately clear de- termination that the Permit’s total nitrogen limit will “ensure” compliance with applicable water quality standards as required by 40 C.F.R. § 122.4(d) and CWA section 401(a)(2). Because, as explained below in subpart (i), the Region did make an adequately clear “ensure” determination, the Board next considers in sub- part (ii) whether CLF has shown clear error or abuse of discretion in the Region’s determination.
(i) The Region’s Finding Is Adequately Clear that the
5.0 mg/l Total Nitrogen Limit is Sufficient to
“Ensure” Compliance
Generally, because the Board gives substantial deference to the permit is-
suer on questions of scientific or technical judgment, a petitioner bears a heavy burden when requesting review of a permit issuer’s decision on issues that are technical in nature – such as the Region’s finding in the present case that the
37 CLF contends that the Permit’s limit for total nitrogen of 5.0 mg/l does not meet the stan-
dards set forth in 40 C.F.R. §§ 122.4(d) and .44(d)(1), which prohibit the issuance of a permit where the permit’s conditions do not ensure compliance with applicable state water quality standards and where the permitted discharges cause or contribute to a violation of water quality standards. Id. at 8. CLF also argues that the narrative treatment optimization limit for November through April does not comply with these requirements. CLF Pet. at 15-16. CLF argues that “the total nitrogen and phos- phorus limits on the Facility are inadequate to either assure attainment of water quality standards in the receiving waters or eliminate the Facility’s contribution to water quality violation in the Blackstone River or the downstream salt water influenced systems.” CLF Pet. at 6-7.
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616 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
Permit’s total nitrogen limit of 5.0 mg/l is necessary and sufficient to ensure com- pliance with Rhode Island’s water quality standards as required by 40 C.F.R.
§ 122.4(d) and CWA section 401(a)(2). See In re Town of Ashland Wastewater Treatment Facility, 9 E.A.D. 661, 667 (EAB 2001); In re NE Hub Partners, L.P., 7 E.A.D. 561, 567-68 (EAB 1998), review denied sub nom. Penn Fuel Gas, Inc. v. U.S. EPA, 185 F.3d 862 (3d Cir. 1999). The Board, however, requires that the permit issuer clearly articulate its determination for it to be accorded this defer- ence. See In re City of Marlborough, Mass. Easterly Wastewater Treatment Plant, 12 E.A.D. 235, 248-52 (EAB 2005); DC MS4, 10 E.A.D. at 342.
In Marlborough, the Board remanded a permit because “the Region [had]
not sufficiently explained where or how it [the ensure finding] is reflected in the record before us.” Marlborough, 12 E.A.D. at 252. The Board rejected as inade- quate the Region’s determination because the Region merely found that “‘it may be possible to meet’” water quality standards. Marlborough, 12 E.A.D. at 249 (quoting the applicable fact sheet in that case). The Board held that “a mere possi- bility of compliance does not ‘ensure’ compliance” as required by the statute and regulations. Id. at 250. Likewise, in DC MS4, the Board explained that “[w]ithout an articulation by the permit writer of his analysis, we cannot properly perform any review whatsoever of that analysis and, therefore, cannot conclude that it meets the requirement of rationality.” DC MS4, 10 E.A.D at 342-43. The Board found inadequate the permit issuer’s conclusion that the permit condition was “reasonably capable” of achieving water quality standards. DC MS4, 10 E.A.D. at 342, 343. The Board explained that “the ‘reasonably capable’ formulation, ac- cepting as it is of the potential that the Permit will not, in fact, attain water quality standards, does not appear to be entirely comparable to the concept of ensuring compliance.” Id.38
The DC MS4 and Marlborough cases appropriately reflect that, when the
permit writer either was unable on the permitting record before it or failed to clearly articulate a conclusion conforming to the statute and regulations, the Board will not extend to the permit issuer’s equivocal statements a more certain or unambiguous meaning. Because the Board generally defers to the Region’s “deter- mination of issues that depend heavily upon the Region’s technical expertise and experience,” In re Envotech, L.P., 6 E.A.D. 260, 284 (EAB 1996), the Board ex- pects permit writers to express the “ensure” finding with clear, unambiguous, de- clarative words supported by appropriate analysis and references to record evi- dence. Marlborough, 12 E.A.D. at 252 (permit remanded where the permit issuer
38 The Board also explained that “more importantly, even accepting the Region’s suggestion
that ensuring compliance was what the permit writer had in mind, we find nothing in the record, apart from [the State’s] section 401 certification, that supports the conclusion that the Permit would, in fact, achieve water quality standards,” and the Region did not dispute that there was a “body of information drawing the certification into question.” DC MS4, 10 E.A.D. at 342-43.
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 617
failed to “sufficiently explain[] where or how it [the ensure finding] is reflected in the record”).
The Region’s statements in the present case may be distinguished from the
permitting decisions in both DC MS4 and Marlborough where the Board found that the permit issuer failed to make an adequately clear finding that the permit would ensure compliance. Here, the Region’s response to comments is adequately clear in its meaning. The Region began by expressly identifying its duty “to en- sure compliance with applicable water quality standards” and, in the body of the same paragraph, the Region pointed to record evidence supporting its conclusion stated at the end of the paragraph that the Permit’s total nitrogen limit is “reasona- ble and sufficiently stringent to comply with the CWA.” RTC at 50. The Board concludes that, although the Region could have chosen wording that would have been more clear and specific in its meaning,39 nevertheless a fair and logical read- ing of this paragraph is that the Region determined, based on the record before it, that the Permit’s total nitrogen limit is sufficient to “ensure” compliance with ap- plicable water quality standards.
This meaning is also supported by the Region’s statement at another place
in its response to public comments, where the Region stated that “the significant nitrogen reductions required by the permit, as well as other permits in the water- shed, are consistent with achieving water quality standards. Further limitations
-
-
- are not warranted at this time.” RTC at 6 (emphasis added). Although the
Region’s finding of “consistent” with achieving water quality standards may be ambiguous and, therefore, on its own, would not be clear, the Region also specifi- cally found that “further limitations * * * are not warranted,” thereby clarifying the Region’s conclusion that, based on the record, the Permit’s total nitrogen limit is sufficiently stringent to achieve water quality standards. Id.40 Thus, to the extent that CLF argues the Board should remand the present case for the same reason the Board remanded in Marlborough, CLF’s Reply at 8-9, the Board must reject CLF’s contention. Here, the Region stated its determination more clearly and con- sequently the Board concludes that the Region made an adequately clear finding that the total nitrogen Permit limit is sufficient to ensure compliance with applica- ble water quality standards. The Board next considers whether CLF has met its burden to show that the 5.0 mg/l limit is clearly erroneous.
- are not warranted at this time.” RTC at 6 (emphasis added). Although the
39 The Region is encouraged to choose clear and direct wording to express whether a permit’s
-
conditions ensure compliance with applicable water quality standards.
40 The Region stated its preliminary finding in the Fact Sheet that “b]ased on the available
evidence, * * * EPA has concluded that a seasonal reduction of nitrogen to no more than 5.0 mg/l is required at the [District’s] facility in order to achieve water quality standards.” Fact Sheet at 14 (em- phasis added).
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618 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
(ii) The 2004 RIDEM Report Does Not Show that the
Region Committed Clear Error or an Abuse of
Discretion in Finding that 5.0 mg/l is Sufficiently
Stringent
CLF argues that the evidence in the record, namely the 2004 RIDEM Re-
port, requires the Region to set the Permit limit for total nitrogen at 3.0 mg/l, the limit of technology, and to impose additional controls. CLF Pet. at 10. CLF ar- gues that the Region “has not provided any lawful justification for failing to im- pose [total nitrogen] effluent limitation at the limit of technology consistent with the RIDEM Study.” CLF Pet. at 10. At bottom, CLF’s appeal depends on two erroneous propositions: first, CLF contends that “the record is clear that there is no uncertainty with regard to the fact that the permit limits necessary to obtain water quality standards require implementation of the limit of technology,” Trans. at 7, and, second, CLF contends that, even if there is uncertainty, the Board’s Marlborough decision requires the Region to “err on the side of stronger limits” and to choose “the most protective limits achievable in light of the scientific un- certainty,” CLF Reply at 9. Based on this, CLF argues that the Permit limit must be set at the limit of technology of 3.0 mg/l and that the Permit must require other enforceable controls and offsets to meet water quality standards. CLF Pet. at 10. As explained below, the Board rejects the first argument as an inaccurate charac- terization of the administrative record in this case, and the Board rejects the sec- ond argument as an attempt to place improper limits on the Region’s exercise of reasonable scientific and technical discretion and judgment in setting permit limits.
CLF argues that “the record is clear that there is no uncertainty with regard
to the fact that the permit limits necessary to obtain water quality standards re- quire implementation of the limit of technology.” Tr. at 7.41 CLF contends that “[t]he RIDEM study unequivocally states that even a limit of 3 mg/l would not result in attainment of water quality standards.” CLF Reply at 4. Upon scrutiny, however, CLF’s argument must fail because the 2004 RIDEM Report, in fact, concludes that there is uncertainty regarding whether the limit of technology, 3.0 mg/l, is necessary to achieve Rhode Island’s water quality standards.
According to CLF, the 2004 RIDEM Report found that “[t]his analysis [re-
ferring to a discussion of the MERL physical model] indicates that even if the
[Massachusetts and Rhode Island waste water treatment plant] discharges are re- duced to the limit of technology (total nitrogen of 3 mg/l), the Seekonk River and portions of the Providence River would not fully comply with existing water qual-
41 According to CLF, the 2004 RIDEM Report relied upon by the Region in its permitting
decision provides the “one definitive statement in the record relevant to setting a total nitrogen limit.” CLF Reply at 2-3.
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 619
ity standards (minimum of 5.0 mg/l, except as naturally occurs) * * * .” CLF Pet. at 9; see also CLF Reply at 2-3. The Board has not been able to locate this exact quote in the 2004 RIDEM Report,42 but it does contain a similar statement: “[t]his analysis indicates that the limit of technology is required but will not fully meet existing water quality standards.” 2004 RIDEM Report at 27. While this statement does support CLF’s concern regarding whether the Permit’s limit of 5.0 mg/l is sufficiently stringent, this statement from the 2004 RIDEM Report is not the de- finitive, unequivocal conclusion that CLF characterizes it to be. The 2004 RIDEM Report goes on to state in a subsequent paragraph:
While we believe that the MERL tank results provide an
adequate representation of the relationship between nitro-
gen and oxygen levels in the Providence and Seekonk
Rivers, some uncertainty remains regarding predicted
water quality improvements and loading reductions nec-
essary to meet water quality standards.
2004 RIDEM Report at 27. Thus, contrary to CLF’s characterization, the 2004 RIDEM Report, in fact, found that while the MERL experiment was a “fair repre- sentation” of conditions and would suggest a limit of 3.0 mg/l, the Report also found that there is “some uncertainty” regarding whether effluent limitations based on the limit of technology are necessary to ensure attainment of water quality standards. It is this uncertainty that the Region identified when explaining why it chose a Permit limit less stringent than the limit of technology. RTC at 49.43
42 It appears that this quote actually comes from a subsequent report. See Rhode Island Depart-
ment of Environmental Management, Plan for Managing Nutrient Loadings to Rhode Island Waters, at 3 (Feb. 1, 2005). This subsequent report does not provide a scientific analysis of the available data and research; it merely refers to the earlier 2004 RIDEM Report as part of the 2005 report’s identifica- tion of steps Rhode Island has taken and is planning to take to reduce nitrogen in Rhode Island’s waters.
43 The Region further stated:
When evaluating whether it had met its obligations under section
301(b)(1)(C) and 401(a)(2) to ensure compliance with applicable water
quality standards, including those of affected states, EPA also accounted
for the fact that Rhode Island, when assigning permit limits to facilities
within its own borders in accordance with its own water quality stan-
dards, did not conclude more stringent limits would be necessary or ap-
propriate at this time. Under Rhode Island’s permitting approach, limits
of 5 mg/l and 8 mg/l have been imposed on various Rhode Island
POTWs whose discharges impact Narragansett Bay, and Rhode Island
has recommended that similar limits be placed on certain Massachusetts
facilities that are impacting the Bay. See Evaluation of Nitrogen Targets
and WWTF Load Reductions for the Providence and Seekonk Rivers,
RIDEM, December 2004. In arriving at its decision to impose a nitrogen
Continued
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620 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
Accordingly, the 2004 RIDEM Report is not at odds with the Region’s decision, and it does not demonstrate clear error as CLF argues.
The Board also rejects CLF’s argument that the Board’s Marlborough deci-
sion requires that “[w]hen there is any amount of uncertainty, EPA must err on the side of stricter limits.” CLF’s Reply at 9. To the contrary, Marlborough’s holding is narrower: the Board held that a permit must be remanded if the permit issuer failed to “sufficiently explain[] where or how it [the ensure finding] is reflected in the record.” Marlborough, 12 E.A.D. at 252.44
Not only does CLF’s argument lack support in Marlborough, it also must be
rejected because it is at odds with the Region’s exercise of reasonable discretion and judgment – it would establish a rigid rule requiring the Region to select the most stringent achievable limit when there is any conflict or uncertainty in the record regarding attainment of water quality standards. The Board has never adopted such an inflexible rule, nor is one required by the statute or regulations. To the contrary, “[i]n the face of unavoidable scientific uncertainty, the Region is authorized, if not required, to exercise reasonable discretion and judgment.” Do- minion, 13 E.A.D. at 426. Nothing in the regulations or our prior case law remove the Region’s discretion to resolve the conflict in the evidence.
As explained above in discussing the District’s and MassDEP’s arguments,
the statute and regulations do authorize, and to a certain extent require, the Region to take a precautionary approach. See e.g., 40 C.F.R. § 122.44(d)(1) (referring to “reasonable potential”); id. § 122.4(d) (requiring the permit to “ensure” compliance with water quality standards); CWA § 401(a)(2) (requiring permit to “insure” compliance with water quality standards). The statutory word “insure” and the comparable regulatory term “ensure” make clear that the permit issuer should have a high degree of confidence in the determination, but there is no discernable intent to remove all discretion, particularly with respect to scientific and technical deter- minations that are inherently not free from all doubt. These provisions provide boundaries to the Region’s discretion; these provisions do not remove all discre- tion and technical judgment as would an interpretation that requires the permit writer to impose the limit of technology whenever there is any uncertainty.
(continued)
effluent limit of 5 mg/l on the District facility, EPA regarded Rhode Is-
land’s position as additional evidence that the limit was reasonable and
sufficiently stringent to comply with the CWA.
RTC at 50.
44 Once the Region has clearly articulated its finding, the Board is able to consider it on ap-
peal, giving due deference to the “determination of issues that depend heavily upon the Region’s tech- nical expertise and experience.” Envotech, 6 E.A.D. at 284.
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In considering arguments on appeal involving matters requiring scientific or
technical expertise, “the Board looks to determine whether the record demon- strates that the permit issuer duly considered the issues raised in the comments and whether the approach ultimately adopted by the permit issuer is rational in light of all the information in the record.” Attleboro, 14 E.A.D. at 411 (citations omitted). “If the Board is 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, the Board typically will defer to the permit issuer.” Id. Giving deference to the permit issuer’s scientific and technical judgment “serves an important function within the framework of the Agency’s administrative pro- cess; it ensures that the locus of responsibility for important technical decision- making rests primarily with the permitting authority, which has the relevant spe- cialized expertise and experience.” Peabody, 12 E.A.D. at 33; see also In re Carlota Copper Co., 11 E.A.D. 692, 708 (EAB 2004) (explaining that “a peti- tioner seeking review of issues that are technical in nature bears a heavy burden because the Board generally defers to the Region on questions of technical judg- ment”)); Envotech, 6 E.A.D. 260, 284 (EAB 1996) (“absent compelling circum- stances, the Board will defer to a [r]egion’s determination of issues that depend heavily upon the [r]egion’s technical expertise and experience”).
Here, the Region’s response to comments acknowledged and rejected CLF’s
contention that the record requires a total nitrogen limit set at the limit of technol- ogy. As explained above, the Region found that the Permit’s total nitrogen limit of 5.0 mg/l is sufficient to ensure compliance with Rhode Island’s water quality stan- dards. RTC at 6, 47-51. The Region explained that “[d]espite the severe nitro- gen-related impairments in the receiving waters, EPA opted not to impose a limit based on more stringent loading scenarios at this time in order to account for uncertainties associated with the physical model.” RTC at 49. It is noteworthy that the Region identified the same reasons for finding uncertainty in the MERL ex- periment’s results as the 2004 RIDEM Report identified. Compare 2004 RIDEM Report at 2745 with RTC at 6, 17, 29-30, 47-51, 55, 73, 94-96. The Region ex-
45 The 2004 RIDEM Report indicates that the following factors create “some uncertainty” re-
garding “predicted water quality improvements and loading reductions necessary to meet water quality standards”:
[S]ignificantly lower mean DIN [dissolved inorganic nitrogen] concen-
trations were observed in the Providence and Seekonk Rivers as com-
pared to the MERL experiment for an equivalent loading rate, which
may be the result of large differences between the field and experimental
flushing times, uptake by macroalgae and denitrification in the bottom
waters. Also the MERL experiment DO [dissolved oxygen] sampling
protocol does not provide sufficient data to fully assess compliance with
the recently established EPA guidelines regarding cumulative periods of
low dissolved oxygen.
2004 RIDEM Report at 27.
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622 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
plained that “when evaluating the adequacy of the limit, EPA was also aware that the particular approach it adopted possesses conservative elements which enhance the protectiveness of the permit beyond [what was contemplated by the MERL tank experiments].” RTC at 49.46 There is no apparent irrationality or clear error in these reasons for finding the Permit’s 5.0 mg/l total nitrogen limit sufficient to ensure compliance with Rhode Island’s water quality standards, and CLF has not shown clear error in any of these reasons the Region gave for its decision.
As noted above, the Region also placed particular emphasis on “the fact that
Rhode Island, when assigning permit limits to facilities within its own borders in accordance with its own water quality standards, did not conclude more stringent limits would be necessary or appropriate at this time * * * and Rhode Island has recommended that similar limits be placed on certain Massachusetts facilities.” RTC at 50. It is appropriate for the Region to take into consideration the views of Rhode Island, as an affected state, regarding what is required to achieve compli- ance with Rhode Island’s own water quality standards.
Specifically, the Region is required by regulation to determine whether the
Permit’s limits will “ensure” compliance with the water quality standards of af- fected states. 40 C.F.R. § 122.4(d); see also CWA § 401(a)(2). The statute’s pro- hibition under section 401(a)(2) of issuing a permit that does not “insure” compli- ance with water quality standards of all affected states serves a largely parallel function to the certification requirement under section 401(a)(1), which the permit applicant must obtain from the state where the discharge originates. It is notewor- thy that, for state certifications under section 401(a)(1), the Region is under a duty to defer to the requirements the state deems necessary to comply with its water quality standards.47 This prevents EPA from relaxing any requirements, limita- tions or conditions imposed by state law and made a condition of the state’s certi- fication. See, e.g., Teck Cominco, 11 E.A.D. at 488-89; In re City of Moscow, Idaho, 10 E.A.D. 135, 151 (EAB 2001); In re City of Jacksonville, Dist. II Waste- water Treatment Plant, 4 E.A.D. 150, 157 (EAB 1992). Although section 401(a)(2) does not require certification from downstream affected states and the Region was not required to defer to the affected state’s interpretation of its water quality standards, nevertheless, it certainly was appropriate for the Region to con- sider and take into account Rhode Island’s interpretation of Rhode Island law
46 The Region explained that the use of a concentration limit, rather than a mass limit, provides
additional protection while the District’s discharges remain below the Treatment Plant’s design capac- ity. RTC at 49-50. As discussed below, both MassDEP and the District have requested review of the Region’s use of a concentration limit, rather than a mass limit. See below Part II.D.3.
47 Specifically, the regulatory provisions pertaining to state certification provide that EPA may
not issue a permit until a certification is granted or waived by the state in which the discharge originates, 40 C.F.R. § 124.53(a), and that “[w]hen certification is required * * * no final permit shall be issued * * * [u]nless the final permit incorporates the requirements specified in the certification,” id. § 124.55(a).
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 623
when the Region made its determination. Not only has Rhode Island generally not required facilities located in Rhode Island to reduce nitrogen discharges to the limit of technology, but also in the 2004 RIDEM Report, Rhode Island recom- mended a 5.0 mg/l total nitrogen limit for the District.
Accordingly, the Board concludes that CLF’s arguments do not show clear
error or abuse of discretion in the Region’s determination that the Permit’s total nitrogen limit of 5.0 mg/l is sufficient to ensure compliance with Rhode Island’s water quality standards.48 The Board also rejects CLF’s call for a year-round numeric limit and additional controls beyond the numeric permit limit, which CLF based on the same erroneous contention regarding the 2004 RIDEM Report’s certainty.
3. The Record Supports the Region’s Decision to State the Total
Nitrogen Limit as a Mass, Not Concentration, Limit
MassDEP argues that 40 C.F.R. § 122.45(f)(1) requires permit limits to be
stated in terms of mass, unless one of three exceptions applies, and MassDEP contends that none of the exceptions have been established in this case. MassDEP Supp. Pet. at 3, 7-10. MassDEP also argues that the Region violated EPA policy when it selected a total nitrogen limit stated as a concentration, rather than stated in terms of mass. Id. at 3, 10-12.
The Region explained in its response to comments that section
122.45(f)(1)(ii) allows a limit to be stated as a concentration “when applicable standards and limitations are expressed in terms of other units of measurement,” one of the three exceptions under section 122.45(f)(1). RTC at 17. The Region explained that “[i]n this instance, we believe expression of limits on total nitrogen as concentration limits is necessary to meet Rhode Island’s water quality stan- dards.” RTC at 17. As explained below, in reaching this conclusion the Region relied on Rhode Island’s interpretation of its narrative water quality standard.
On appeal, MassDEP argues that the phrase “applicable standards and limi-
tations” as used section 122.45(f)(1)(ii) is a defined term and the Region’s inter- pretation is an “impermissible reinterpretation of the plain language of the regula- tion.” MassDEP Supp. Pet.at 7. “Applicable standards and limitations means all
48 The Board likewise rejects the District’s argument that the total nitrogen limit of 5.0 mg/l
“very well may not lead to standards attainment” and therefore “[is] not necessary to attain standards.” Dist. Supp. Pet. at 11. The District has not shown any clear error or abuse of discretion in the Region’s determination, based on the administrative record of this matter, that the Permit’s total nitrogen limit is sufficient to ensure compliance with Rhode Island’s water quality standards. Moreover, the District’s argument is specious because rather than leading to a delay in imposing more stringent requirements, as the District argues, a finding that the Permit cannot ensure compliance with applicable water quality standards would require denial of the District’s permit application.
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624 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
State, interstate and federal standards and limitations to which a ‘discharge’ * * * is subject under the CWA, including ‘effluent limitations,’ water quality standards, standards of performance, toxic effluent standards or prohibitions, ‘best manage- ment practices,’ [and] pretreatment standards * * * under sections 301, 302, 303, 304, 306, 307, 308, 403 and 405 of CWA.” 40 C.F.R. § 122.2. MassDEP argues that, because the Rhode Island water quality standards are narrative,“ they are not
”expressed“ in terms of a concentration and therefore this exception does not ap- ply in the present case. MassDEP Supp. Pet. at 9.
MassDEP is correct that Rhode Island’s water quality standard is expressed
as a narrative description of water quality. See 12-190-001 R.I. Code R. § 8.D.(1). However, Rhode Island has interpreted this narrative standard, as applied to con- trol of nitrogen, in terms of a concentration of the pollutant in effluent discharges. 2004 RIDEM Report at 23-27. In other words, Rhode Island’s interpretation of its narrative criterion is “expressed” in terms of a concentration of nitrogen in effluent discharges. Accordingly, it was not unreasonable for the Region to conclude that consistency with Rhode Island’s interpretation of its narrative requirement war- ranted expressing the Permit’s limit as a concentration.
The Region’s response to comments included a discussion of policy reasons
favoring this interpretation in the particular circumstances of this case:
In this instance, we believe expression of limits on total
nitrogen as concentration limits is necessary to meet
Rhode Island’s water quality standards. A key report un-
derlying the proposed permit limits is the December 2004
report, Evaluation of Nitrogen Targets and WWTF Load
Reductions for the Providence and Seekonk Rivers, com-
pleted by RIDEM. The report documents that the Seekonk
River is the most nutrient impacted area of Narragansett
Bay: current total nitrogen loads to the Seekonk River are
24 times higher than the total nitrogen load to all of Nar-
ragansett Bay on a per unit area basis. If the concentration
limitations recommended by the report were used to es-
tablish mass limits using the design flows of the waste
water treatment facilities, the Seekonk River would re-
ceive nitrogen loads of approximately 10 times higher
than the Bay-wide loads per unit area. With the limita-
tions established as concentration limits, at current flows
the Seekonk River would receive nitrogen loads of ap-
proximately 6.5 times higher than the Bay wide load.
* * * Setting the limits in terms of concentration will en-
able assessment of the response to a loading of 6.5 times
the Bay-wide loading.
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 625
RTC at 17-18. The Region described the use of a concentration limit for nitrogen as a “conservative element” that enhances the Permit’s “protectiveness.” RTC at 49.49
4. The Region Followed Proper Procedures and Gave Sufficient
Notice in Setting the Total Nitrogen Limit
The District argues that the Region did not follow the proper procedures
and notice provisions when the Region determined the Permit’s numeric effluent limit for total nitrogen. Dist. Supp. Pet. at 16-19. Specifically, the District argues that, by translating Rhode Island’s narrative water quality standard into a numeric permit limit, the Region in effect adopted a numeric water quality standard for the state, which the District argues may only be accomplished as provided by CWA section 303(c)(4) through formal rulemaking. Id. at 16-17. The District also ar- gues that the Region committed clear error by failing to follow the procedures of 40 C.F.R. § 131.11(a)(2) for developing numeric permit limits for toxic pollutants to comply with narrative water quality standards. Id. at 17-19. The District points to both provisions in an effort to invoke various procedural requirements, includ- ing publication in the Federal Register, as a bar to the Region’s determination of the Permit’s numeric effluent limit for total nitrogen. Id. at 16-19. Both arguments must be rejected as relying on inapplicable law. This proceeding is governed by CWA section 402 and 40 C.F.R. § 122.44(d)(1)(vi) and 40 C.F.R. part 124, which provide opportunity for public hearing and due process appropriate for the issu- ance of a permit.
First, the District’s argument based on CWA section 303(c)(4) conflates the
determination of numeric permit limits in this permitting proceeding arising under CWA section 402 with federal promulgation of a state water quality standard under CWA section 303(c)(4). The statutory section the District cites, section 303(c)(4), by its terms applies only to circumstances where EPA is required to promulgate a state water quality standard because the state has failed to promul- gate one complying with the CWA’s requirements. CWA § 303(c)(4), 33 U.S.C. § 1313(c)(4).50 Here, the state of Rhode Island promulgated an applica-
49 Here, there also is no utility in remanding this Permit to require the Region to impose a mass
limit in addition to the concentration limit the Region found necessary to comply with Rhode Island’s water quality criteria, which may not be the case in other circumstances.
50 CWA section 303(c)(4) provides as follows:
The Administrator shall promptly prepare and publish proposed regula-
tions setting forth a revised or new water quality standard for the naviga-
ble waters involved -
(A) if a revised or new water quality standard submitted by such State
under paragraph (3) of this subsection for such waters is determined by
Continued
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626 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
ble water quality standard that EPA long ago determined complies with the CWA’s requirements. See 12-190-001 R.I. Code R. § 8.B.(1)-(2), 8.D.(1); see also State and Tribal Water Quality Standards: Notice of EPA Approvals and An- nouncement of EPA Internet Repository, 66 Fed. Reg. 29,951 (June 4, 2001); http://www.epa.gov/waterscience/standards/wqslibrary/ri/ri_1_wqr.pdf. Accord- ingly, Rhode Island’s water quality standards govern and CWA section 303(c)(4) is altogether inapplicable.
Likewise, the District’s argument based on 40 C.F.R. § 131.11(a)(2) con-
flates “toxic” pollutants with pollutants, such as nitrogen, that have not been desig- nated as “toxic.” Specifically, section 131.11(a)(2) governs the process for deter- mining numeric permit limits for “toxic pollutants” where the applicable water quality criteria is narrative. 40 C.F.R. § 131.11(a)(2). The term “toxic pollutants” is defined as “those pollutants listed by the Administrator under section 307(a) of the Act.” 40 C.F.R. § 131.3(d). Nitrogen is not on the Administrator’s list of pollu- tants under CWA section 307(a). 40 C.F.R. § 401.15.51 Accordingly, section 131.11(a)(2), by its terms, does not apply in the present case to the Region’s deter- mination of the Permit’s numeric effluent limit for total nitrogen.
Contrary to the District’s citation to the inapplicable CWA section 303(c)(4)
and 40 C.F.R. § 131.11(a)(2), this permitting proceeding and the Region’s deter- mination of the Permit’s effluent limitation for total nitrogen is governed by CWA section 402, 33 U.S.C. § 1342(a), and 40 C.F.R. § 122.44(d)(1)(vi) and the part 124 procedural rules. In particular, these rules require the Region to provide “opportunity for public hearing,” 33 U.S.C. § 1342(a)(1), the specific require- ments of which are set forth in 40 C.F.R. part 124, and these rules specifically authorize the Agency, pursuant to that process, to determine numeric permit limits for specific pollutants where the state criterion is narrative. 40 C.F.R.
§ 122.44(d)(1)(vi). The preamble for the Federal Register notice promulgating section 122.44(d)(1)(vi) confirms that this provision is appropriately applied “to
(continued)
the Administrator not to be consistent with the applicable requirements
of this Act, or
(B) in any case where the Administrator determines that a revised or
new standard is necessary to meet the requirements of this Act.
The Administrator shall promulgate any revised or new standard under
this paragraph not later than ninety days after he publishes such pro-
posed standards, unless prior to such promulgation, such State has
adopted a revised or new water quality standard which the Administrator
determines to be in accordance with this Act.
CWA § 303(c)(4), 33 U.S.C. § 1313(c)(4).
51 Nitrogen also is not on the list of “priority pollutants” published at 40 C.F.R. § 423, App. A.
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 627
set effluent limits to control discharges (in the absence of state numerical water quality criteria for all pollutants of concern).” Nat’l Pollutant Discharge Elimina- tion System, Surface Water Toxics Control Program, 54 Fed. Reg. 23,868, 23,878 (June 2, 1989). In promulgating this regulation, EPA explained that “EPA’s legal obligation to ensure that NPDES permits meet all applicable water quality stan- dards, including narrative criteria, cannot be set aside while a state develops
[numeric] water quality standards.” 54 Fed. Reg. at 23,877. The District may not, in this or any permitting proceeding, challenge this regulation granting the Region the authority to set a numeric effluent limit to achieve Rhode Island’s narrative water quality criterion. See CWA § 509(b)(1), 33 U.S.C. § 1369(b)(1); see also In re City of Irving, Texas, Municipal Separate Storm Sewer System, 10 E.A.D. 111, 123 (EAB 2001), review denied sub nom City of Abilene v. EPA, 325 F3d 657 (5th Cir. 2003). In fact, this regulation was challenged and upheld. American Pa- per Inst., Inc. v. EPA, 996 F.2d 346, 348, 351 (D.C. Cir. 1993); see also American Iron and Steel Inst. v. EPA, 115 F.3d 979, 990-91 (D.C. Cir. 1997).
Indeed, in upholding 40 C.F.R. § 122.44(d)(1)(vi), the D.C. Circuit specifi-
cally considered and rejected an argument that the regulation violated the provi- sions governing promulgation of state water quality standards and criteria. The Court explained:
[T]he regulation does not supplant – either formally or
functionally – the CWA’s basic statutory framework for
the creation of water quality standards; rather, it provides
alternative mechanisms through which previously adopted
water quality standards containing narrative criteria may
be applied to create effective limitations on effluent emis-
sions. As long as narrative criteria are permissible * * *
and must be enforced through limitations in particular
permits, a permit writer will inevitably have some discre-
tion in applying the criteria to a particular case. The gen-
eral language of narrative criteria can only take the permit
writer so far in her task. Of course, that does not mean
that the language of a narrative criterion does not cabin
the permit writer’s authority at all; rather, it is an ac-
knowledgement that the writer will have to engage in
some kind of interpretation to determine what chemi-
cal-specific numeric criteria – and thus what effluent limi-
tations – are most consistent with the state’s intent as
evinced in its generic standard. The EPA’s new regulation
merely requires that permit writers engage in this task to
create chemical-specific limitations on discharges of pol-
lutants and gives those writers three tools with which to
do this work in a fairly regularized fashion. The regula-
tion thus seems to provide an eminently reasonable means
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628 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
of effectuating the intent of the previously adopted narra-
tive criteria as well as Congress’ own intent, made explicit
in section 301 of the CWA, that all state water quality
standards be enforced through meaningful limitations in
individual NPDES permits.
American Paper Inst., 996 F.2d at 351 (citations omitted).
In the present case, the Region stated that the Permit’s total nitrogen
numeric effluent limit is established to achieve compliance with Rhode Island’s narrative water quality criterion, Fact Sheet at 11-12, and the Region expressly applied 40 C.F.R. § 122.44(d)(1)(vi) in establishing the Permit’s numeric limit. The District has not alleged that the notice of opportunity for public comment and public hearing the Region held during the public comment period, which extended from March 23, 2007 through May 25, 2007, was in any way not in compliance with the part 124 rules. Accordingly, the District has failed to show any clear error or abuse of discretion in the notice or hearing opportunity afforded the District.
E. Challenges to the Permit’s Total Phosphorus Limit
The Region set the Permit’s total phosphorus limit at 0.1 mg/l (100 ug/l) for
April 1 to October 31, and 1.0 mg/l for November through March. Fact Sheet at 10. The Region established this limit applying 40 C.F.R. § 122.44(d)(1)(vi)(B) to ensure compliance with the Massachusett’s narrative water quality criteria. Id. at 8-9. In reaching its decision, the Region considered, among other things, two EPA documents providing guidance on numeric criteria for the Nation’s waters: 1) Office of Water, U.S. EPA, Quality Criteria for Water, EPA 440/5-86-001 (May 1, 1986) (the “Gold Book”); and 2) Office of Water, U.S. EPA, Ambient Water Quality Criteria Recommendations, Information Supporting the Develop- ment of State and Tribal Nutrient Criteria, Rivers and Streams in Nutrient Ecore- gion XIV, EPA-822-B-00-022 (Dec. 2000) (“Ecoregion XIV Criteria”).
CLF challenges the Region’s decision arguing that the Permit’s phosphorus
limit is not sufficiently stringent. CLF Pet. at 6-7, 17-18. CLF argues that the maximum applicable criterion should be 0.05 mg/l, not 0.1 mg/l, and that this more stringent limit should apply year-round. Id. In contrast, the District argues that the phosphorus limit is too stringent and that its expired permit’s less strin- gent limit of 0.75 mg/l should be retained. Dist. Supp. Pet. at 32-39. For the fol- lowing reasons, neither CLF, nor the District, has shown clear error or abuse of discretion in the Region’s decision setting the Permit’s total phosphorus limit at 0.1 mg/l for April 1 to October 31 and at 1.0 mg/l for November through March.
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 629
1. The Region’s Reasonable Potential Analysis
The Region concluded that conditions indicative of cultural eutrophication
observed in the Blackstone River immediately downstream from the District’s dis- charge point and more generally throughout the River, combined with the fact that the District’s discharges dominate the Blackstone River’s flow, establish that the District’s discharges have the reasonable potential, under 40 C.F.R.
§ 122.44(d)(1)(i) and (ii), to violate Massachusetts’ water quality criteria. RTC at 107; Fact Sheet at 8-9. Although the District primarily challenges the particular numeric value the Region established for the Permit’s total phosphorus limit, the District does appear to challenge the Region’s reasonable potential determination in one respect. The District argues that “it is improper to simply cite cultural eu- trophication as the basis for imposition of a numeric permit limit. Rather, the limit must be justified by connecting the reduced level of phosphorus with a specific impairment in designated uses.” Dist. Supp. Pet. at 34. As explained below, this argument does not show clear error or abuse of discretion in the Region’s “reason- able potential” determination.
Contrary to the District’s argument, the Region identified the particular
water quality criteria and designated uses violated by the District’s total phosphor- ous discharges. Specifically, the Region explained that Massachusetts’ narrative water quality criteria provide that nutrients “‘[s]hall not exceed the site specific limits necessary to control accelerated or cultural eutrophication’” and that “[a]ny existing point source discharge containing nutrients in concentrations which en- courage eutrophication or growth of weeds or algae shall be provided with the highest and best practicable treatment to remove such nutrients.” Fact Sheet at 8 (citing 314 C.M.R. 4.04 & 4.05(5)(c)). The Region stated further that “the Black- stone River has been designated by Massachusetts as a habitat for fish, other aquatic life and wildlife and for primary (e.g. swimming) and secondary (e.g. fish- ing and boating) contact recreation.” RTC at 106 (citing 314 C.M.R. §§ 4.05(3)(b)
& 4.06 (tbl. 11)). The Region also explained that such waters must be “free of floating, suspended or settleable solids that are aesthetically objectionable or could impair uses” and that “[c]hanges to color or turbidity of the waters that are aesthetically objectionable or use-impairing are also prohibited.” RTC at 107 (cit- ing 314 C.M.R. § 4.05(3)(b)(5), (6)).
The Region also identified the particular phosphorous-driven conditions ob-
served in the Blackstone River that violate Massachusetts’ criteria and designated uses. In particular, the Region determined that the Blackstone River is currently impaired by excessive phosphorus loadings resulting in violations of minimum dissolved oxygen criteria, high levels of chlorophyll a and high levels of macrophyte and periphyton growth. Fact Sheet at 8-9 (citing U.S. EPA Region 1, Blackstone River Initiative Report (May 2001); MassDEP, Blackstone River Basin 1998 Water Quality Assessment Report (2001); MassDEP, Blackstone River Wa- tershed 2003 DWM Water Quality Monitoring Data (May 2005); U.S. Army
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630 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
Corps of Engineers, Phase I: Water Quality Evaluation and Modeling of the Mas- sachusetts Blackstone River (Draft Mar. 2004); MassDEP, Blackstone River Wa- tershed 2003 Biological Assessment (Apr. 4, 2006)). The Region also noted Mas- sachusetts and Rhode Island have included the Blackstone River on their section 303(d) lists of impaired waters. Fact Sheet at 8. The Region explained that “[t]he Blackstone River is listed as impaired for * * * nutrients, organic enrich- ment/low dissolved oxygen (DO), flow alterations and other habitat alterations, pathogens, suspended solids, turbidity, and objectionable deposits.” RTC at 107. More specifically, the Region explained that at low flow in the summer of 2003, the following conditions were observed:
At the first station downstream of the UBWPAD dis-
charge, instream aquatic vegetation was described as be-
ing “extremely abundant, covering virtually the entire
river bottom and dominated by rooted submergent
macrophytes (coontail, Ceratophyllum sp.; waterweed,
elodea sp.; pondweed, Potamogeton crispus). Slight tur-
bidity in the water column was noted during sampling. A
luxuriant algal community was also observed, with green
filamentous algae attached to submergent vegetation and
a brown flock covering much of the rocky substrates.”
Id. at 35. The Region determined that these phosphorus-driven conditions ob- served immediately downstream from where the District discharges, and more generally throughout the Blackstone River, combined with the fact that the Dis- trict’s discharges dominate the Blackstone River’s flow, establish that the Dis- trict’s discharges have a reasonable potential to violate Massachusetts’ water qual- ity criteria. RTC at 107; Fact Sheet at 8-9.
This analysis the Region provided in the Fact Sheet and Response to Com-
ments identified specific phosphorus-driven conditions observed in the River that violate the Massachusetts water quality standards for both designated uses and narrative criteria. Thus, contrary to the District’s contention, the Region did not “simply [cite] cultural eutrophication as the basis for imposition of a numeric per- mit limit” rather than “connecting the reduced level of phosphorus with a specific impairment in designated uses.” Dist. Supp. Pet. at 34. The Region identified the designated uses that are impaired as well as the criteria that are violated and ex- plained why it concluded there is a reasonable potential that the District’s dis- charges cause the observed violations.
The District has identified no record evidence that would refute the Re-
gion’s conclusion that the identified conditions in the River immediately down- stream from where the District discharges are attributable at least in part to the District’s discharges, and the District has not explained why it believes these con- ditions do not evidence violation of Massachusetts’ narrative criteria and desig-
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 631
nated uses. Accordingly, the District has failed to show clear error in the Region’s conclusion that the District’s discharges are or may be at a level that causes, con- tributes to, or has the reasonable potential to cause violations of Massachusetts’ water quality standards. 40 C.F.R. § 122.44(d)(1)(i), (ii).
2. The Region’s Decision to Set the Total Phophorus Limit at
0.1 mg/l For Warm-Weather Months and 1.0 mg/l for
Cold-Weather Months
The Region set the following total phosphorus numeric limit: 0.1 mg/l
(100 ug/l) for the warm-weather period of April 1 to October 31, and 1.0 mg/l for the cold-weather period of November through March. Fact Sheet at 10. CLF ar- gues that this limit is not sufficiently stringent both for the warm- and cold-weather periods. CLF Pet. at 6-7, 17-18. In contrast, the District argues that the phosphorus limit is too stringent and that the limit in the District’s expired permit of 0.75 mg/l should be retained. Dist. Supp. Pet. at 32-39. For the reasons explained below, CLF and the District have not shown that the Region clearly erred or abused its discretion in establishing the Permit’s numeric limit.
a. CLF Did Not Preserve for Appeal Its Objections to the
Phosphorus Limit
CLF challenges the Permit’s phosphorus limit arguing that it is not suffi-
ciently stringent both for the warm- and cold-weather periods. CLF Pet. at 6-7, 17-18. CLF’s arguments on appeal are rejected because CLF has not shown that these issues and arguments were raised during the public comment period. CLF’s letter submitted during the public comment period, which stated that “the final permit’s warm weather total phosphorus limit should be no higher than 0.1 mg/l,” would not have alerted the Region to CLF’s disagreement with the Region’s pro- posed decision to set the limit at 0.1 mg/l. See Letter from Peter Shelley, esq., et al, on behalf of CLF to NPDES Permits Unit, U.S. EPA at 2 (May 23, 2007).
On appeal, CLF now raises much more detailed issues and arguments chal-
lenging the Region’s decision. For example, where CLF’s comment letter stated that the warm-weather limit “should be no higher than 0.1 mg/l,” id., CLF now argues on appeal that the maximum applicable criterion should be 0.05 mg/l, CLF Pet. At 6-7, 17-18. CLF argues that “[g]iven the severity of the pollution issues in these receiving waters and the pollution loads resulting from the inadequate limit in the Permit, there is simply no justification for EPA Region 1’s failure to require that [the District] implement limit-of-technology controls at the Facility.” CLF Pet. at 18. CLF argues further that the Permit’s phosphorus limit is “dramatically higher than the applicable standards” – and that the Region should have adopted the Ecoregion IV Criteria recommendation of 0.024 mg/l or the Gold Book rec- ommendation of 0.05 mg/l for streams directly discharging into a lake or im- poundment. Id. at 18, 20. CLF also states on appeal that “[t]here is simply no
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justification for applying a ‘Gold Book’ criterion applicable to a free-flowing stream to the Blackstone River – a stream that is extensively impounded.” Id. at 18. CLF also points to a “ecoregional criterion of 24 g/l expressly developed by EPA for use within Ecoregion XIV, Eastern Coastal Plains.” Id. CLF argues fur- ther that the Region acknowledges that phosphorus discharged during winter months is likely to settle and accumulate in the downstream impoundments and contribute to impairments during the summer and that, therefore, the Region must impose a more stringent limit than the Permit’s limit of 1.0 mg/l applicable during winter months. Id. at 21. None of these detailed arguments were stated in CLF’s comments submitted during the public comment period.
The regulation governing permit appeals provides that the petition for re-
view shall include “a demonstration that any issues being raised were raised dur- ing the public comment period (including any public hearing) to the extent re- quired by these regulations,” 40 C.F.R. § 124.19(a), and the regulation governing public comment provides that:
All persons, including applicants, who believe any condi-
tion of a draft permit is inappropriate * * * must raise
all reasonably ascertainable issues and submit all reason-
ably available arguments supporting their position by the
close of the public comment period (including any public
hearing) * * * .
40 C.F.R. § 124.13 (emphasis added). The Board has routinely applied these pro- visions to deny review where the issue or argument “was reasonably ascertainable but was not raised during the comment period on the draft permit.” In re Shell Offshore, Inc., 13 E.A.D. 357, 394 (EAB 2007); accord In re Christian County Generation, LLC, 13 E.A.D. 449, 457 (EAB 2008); In re BP Cherry Point, 12 E.A.D. 209, 218-20 (EAB June 21, 2005); In re Kendall New Century Develop., 11 E.A.D. 40, 55 (EAB 2003).
This “is not an arbitrary hurdle, placed in the path of potential petitioners
simply to make the process of review more difficult; rather, it serves an important function related to the efficiency and integrity of the overall administrative scheme. As the Board has explained in the past, ‘[t]he intent of these rules is to ensure that the permitting authority * * * has the first opportunity to address any objections to the permit, and that the permit process will have some finality.’” BP Cherry Point, 12 E.A.D. at 219 (quoting In re Sutter Power Plant, 8 E.A.D. 680, 687 (EAB 1999)).
The permitting process requires a specific time for public comment so that
issues may be raised and “the permit issuer can make timely and appropriate ad- justments to the permit determination, or, if no adjustments are made, the permit issuer can include an explanation of why none are necessary.” In re Union County
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 633
Res. Recovery Facility, 3 E.A.D. 455, 456 (Adm’r 1990); accord Sutter Power, 8 E.A.D. at 687. The opportunity for public comment serves an important role in establishing the proper staging of the permit decision process:
If an issue is not raised during the notice and comment
process, * * * the permitting authority is provided no op-
portunity to address the issue specifically prior to permit
issuance. In such instances, if the Board were to exercise
jurisdiction, it would become the first-level deci-
sionmaker as to such newly raised issues, contrary to the
expectation that “‘most permit conditions should be finally
determined at the [permit authority] level.’” Knauf I,
8 E.A.D. at127 (quoting 45 Fed. Reg. 33,290, 33,412
(May 19, 1980)). Alternatively, the Board might remand
such issues back to the permitting authority for initial de-
termination at that level, potentially resulting in an unnec-
essarily protracted permitting process, where each time a
final permit is issued and a new issue is raised on review,
the permit must be sent back to the permit issuer for fur-
ther consideration. Such an approach would undermine
the efficiency, predictability, and finality of the permitting
process.
BP Cherry Point, 12 E.A.D. at 219-20. In short, “[t]he effective, efficient, and predictable administration of the permitting process demands that the permit is- suer be given the opportunity to address potential problems with draft permits before they become final.” In re Encogen Cogeneration Facility, 8 E.A.D. 244, 250 (EAB 1999).
In the present case, the Region mentioned both the Gold Book and the
Ecoregion XIV Criteria in the Fact Sheet made available to the public prior to the public comment period. Fact Sheet at 9. The Region also specifically stated that those documents recommended criteria ranging from 0.024 mg/l to 0.1 mg/l and the Region explained why it was selecting a criterion at the upper end of that range. Id. at 9-10. As noted, CLF’s own comment letter merely stated that “the final permit’s warm weather total phosphorus limit should be no higher than 0.1 mg/l.” Letter from Peter Shelley, esq., et al, of CLF to NPDES Permits Unit, U.S. EPA at 2 (May 23, 2007). CLF did not mention anywhere in its comment letter the arguments it now raises on appeal, specifically that the Region should apply the criterion of 0.024 mg/l recommended by the Ecoregion IV Criteria, nor did CLF mention the Gold Book 0.05 mg/l recommendation for streams that dis- charge directly into a lake or impoundment. Id. Although CLF’s letter and the attachment to its letter did make reference to the limits of technology, it did not do so in a manner that would have alerted the Region to the contentions CLF now makes on appeal that the Permit is required to have a limit set as stringent as is
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634 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
achievable under available technology. CLF also has not identified any other per- son’s public comments that raised the issues CLF now raises.52 Accordingly, CLF’s petition fails to include the required “demonstration that any issues being raised were raised during the public comment period * * * to the extent required by these regulations,” 40 C.F.R. § 124.19(a), which includes submitting “all rea- sonably available arguments” by the close of public comment, id. § 124.13. There- fore, CLF’s petition with respect to the phosphorus limit must be dismissed.
b. The Region’s Decision to Establish a New Limit More
Stringent than the District’s Expired Permit’s Limit
The District argues that the 0.1 mg/l warm-weather total phosphorus limit is
too stringent and that the expired permit’s limit of 0.75 mg/l should be retained. Dist. Supp. Pet. at 32-39. The District argues that the Region should wait and collect data showing the effects of the District’s Treatment Plant improvements the District made to meet the 2001 permit’s limit. Dist. Supp. Pet. at 33. The Dis- trict’s arguments, however, are not well-aimed at either the regulatory require- ments governing the Region’s decision or the Region’s rationale for its decision, and therefore, as explained below, the District’s arguments miss their mark.
The Region applied 40 C.F.R. § 122.44(d)(1)(vi)(B) to establish the Per-
mit’s water quality-based numeric effluent limit to comply with Massachusetts’ narrative water quality criteria. Fact Sheet at 9. As explained above, that regula- tion provides as follows:
Where a State has not established a water quality criterion
for a specific chemical pollutant that is present in an efflu-
ent at a concentration that causes, has the reasonable po-
tential to cause, or contributes to an excursion above a
narrative criterion within an applicable State water quality
standard, the permitting authority must establish effluent
limits using one or more of the following options:
* * *
(B) Establish effluent limits on a case-by-case basis, using
EPA’s water quality criteria, published under sec-
52 Likewise, CLF’s statement in its comment letter that “[t]he limited flushing capacity of this
system, combined with the persistence of phosphorus and nitrogen in the system, warrant considera- tion of year round application of controls,” simply was not sufficient to alert the Region that CLF objected that the most stringent achievable limit should be applied year-round rather than the Permit’s year-round application of controls in the form of a 0.1 mg/l limit during the warm-weather months and a limit of 1.0 mg/l during the cold-weather months. See Letter from Peter Shelley, esq., et al, of CLF to NPDES Permits Unit, U.S. EPA at 2 (May 23, 2007).
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 635
tion 304(a) of the CWA, supplemented where necessary
by other relevant information * * * .“
40 C.F.R. § 122.44(d)(1)(vi)(B). Following the regulation’s direction, the Region used EPA’s water quality numeric criteria guidance set forth in the Gold Book and Ecoregion XIV Criteria, supplemented with other relevant information. Fact Sheet at 9-10. The Region observed that the Gold Book recommends total phosphorus criteria ranging from 0.025 mg/l to 0.1 mg/l, depending on the characteristics of the water body, and that the Ecoregion XIV Criteria states that 0.024 mg/l would represent waters in the region minimally impacted by human activities and with- out cultural eutrophication. Id. The Region selected the least stringent criterion within this range, 0.1 mg/l, as the Permit’s warm-weather limit.
Although the District does not directly argue that the Region should not
have used the Gold Book and Ecoregion XIV Criteria, the District does state that those Agency criteria documents are based on old data, and the District argues that the Region should wait for the development of additional site-specific data and a TMDL or other mathematical model for phosphorus in the Blackstone River. Dist. Supp. Pet. at 32-33, 37-39. The Board rejects this contention, first, because, in referring to the criteria guidance in the Gold Book and Ecoregion XIV Criteria, the Region followed the regulation’s direction to use EPA criteria. See 40 C.F.R. § 122.44(d)(1)(vi)(B). The District has not pointed to record evidence of another available, relevant method authorized under section 122.44(d)(1)(vi) that the Region could have used to identify a numeric criterion for the Blackstone River. See 40 C.F.R. § 122.44(d)(1)(vi)(A), (B), (C) (authorizing permit limits to be based on draft state criteria and EPA’s water quality criteria, supplemented with other relevant information, or based on an indicator parameter).
The District’s argument that the Region should wait to allow time to collect
data showing the effects of the 0.75 mg/l limit imposed in 2001, Dist. Supp. Pet. at 33, simply misapprehends the basis of the Region’s decision. A limit of 0.75 mg/l does not fall within the criteria range the Region identified from EPA’s criteria documents, which is a regulatorily-authorized method for determining the numeric permit limit.
Further, the District’s references to the expired permit’s limit and analysis
underlying that limit, including the previously-used mathematical model, referred to as QUAL2E, Dist. Supp. Pet. at 32-33, 39, only address the control of low dissolved oxygen levels and do not address other cultural eutrophication problems identified by the Region. See RTC at 41. The Region explained: “The model was not used to develop effluent limitations addressing cultural eutrophication in the new permit because efforts to update the model in light of new data were unsuc- cessful.” Id. The Region explained that the 2001 permit’s “0.75 mg/l total phos- phorus limit was based on meeting dissolved oxygen criteria in the Blackstone
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636 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
River only and did not address eutrophication related impairments in either the Blackstone River or Narragansett Bay.” RTC at 25; see also id. at 35.
The Region identified new data the Army Corps of Engineers collected in
2003 showing that macrophytes dominate the Blackstone River immediately be- low the District’s discharge point – “[t]he plants that dominated these reaches all have in common that they grow in dense, thick, and long masses and are all in- dicators of eutrophic freshwater.” Id. The Region explained that the QUAL2E model cannot be used to analyze this problem: “Since the model [QUAL2E] is not able to simulate rooted aquatic plants, efforts to update the model based on the new Corps of Engineers data were unsuccessful relative to simulating instream phosphorus levels.” Id.
To address the specific problems identified in the Blackstone River, the Re-
gion followed the direction of 40 C.F.R. § 122.44(d)(1)(vi) and utilized EPA’s water quality numeric criteria guidance found in the Gold Book and Ecoregion XIV Criteria in setting the numeric limit for phosphorus. In attacking the Region’s decision, the District has not sought to meet the standard established by 40 C.F.R.
§ 122.44(d)(1)(vi). The District has not pointed to any EPA or Massachusetts numeric criteria, nor any other relevant record evidence, that would support a total phosphorus limit of 0.75 mg/l as sufficient to control cultural eutrophication im- mediately and further downstream from the District’s discharge point.
The Board also rejects the District’s effort to introduce on appeal certain
output from a mathematical model currently in development by the District. See Dist. Supp. Pet. at 38 & ex. G. As noted in the response to comments, devel- opment and testing of the model has not been completed, and was therefore not utilized in setting a phosphorus limit for this Permit. RTC at 76.
More generally, the Board rejects the District’s request for delay in estab-
lishing the phosphorus limit for the same reasons the Board rejected similar argu- ments calling for delay with respect to the total nitrogen limit – specifically, the regulations direct the permit issuer to establish water quality-based effluent limits even in the absence of a TMDL or wasteload allocation and the statute favors expeditious efforts to address water quality problems, rather than delay. See Part II.D.2.b(ii)(a). The Region also appropriately and sufficiently identified the ex- isting severe phosphorus-driven cultural eutrophication violating water quality criteria and impairing the Blackstone River’s designated uses as a further reason for imposing a stringent permit limit at this time without waiting for further data. RTC at 40-41. The Region was not required to wait for further data, development of a TMDL, or development of a mathematical model for total phosphorus in the Blackstone River.
The Region also considered whether site-specific data collected in 2003
would support a permit limit at 0.75 mg/l, even though that limit would not fall
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 637
within the recommendation of the Gold Book and Ecoregion XIV Criteria. Specif- ically, the Region noted that data collected by MassDEP and the Army Corps of Engineers in 2003 do not support a 0.75 mg/l limit. RTC at 35. The Region ex- plained that the District discharged at close to the 0.75 mg/l level in 2003 and yet the Blackstone River exhibited characteristics of significant eutrophication. Id. (identifying an August 2003 monthly average discharge concentration of 0.8 mg/l). The District attempts to attack the Region’s analysis by arguing that the observations regarding River conditions were not made in the same month when the Distict’s discharges were near the 0.75 mg/l level, and that therefore the 2003 data do not show use-impairing cultural eutrophication at that discharge level. Dist. Supp. Pet. at 36. The District’s argument, however, must fail for two rea- sons. First, the record contains multiple observations of severe cultural eutrophi- cation throughout the 2003 summer53 indicating that the River observations are sufficiently aligned with the discharge data. Second and more important, even if the District’s argument were to show that there is a misalignment between the 2003 River condition observations and the District’s discharge near the 0.75 mg/l level, there would still be no identified evidence in the record showing that a limit of 0.75 mg/l is sufficient to ensure compliance with Massachusetts’ water quality standards. In other words, without the 2003 information, the most relevant infor- mation in the record regarding appropriate numeric criteria would still be the rec- ommendations of the Gold Book and Ecoregion XIV Criteria. Accordingly, these arguments do not show clear error in the Region’s decision to apply to the Black- stone River the criteria range of 0.024 mg/l to 0.1 mg/l taken from the Gold Book and the Ecoregion XIV Criteria.
The District’s argument that the Region should have taken into account dilu-
tion of the District’s discharges in the River at high flows and at seasonal average flow also does not show clear error in the Region’s analysis. Dist. Supp. Pet. at 36-37, 39. The Region explained that Massachusetts regulations require the dilu- tion value to be based on the known or estimated lowest average flow that occurs for seven consecutive days with a recurrence interval of once in ten years (known as the 7Q10 low flow rate). Fact Sheet at 4, 9-10 (citing 314 CMR 4.03(3)). The District cites no law or regulation authorizing the Region to consider dilution at flow conditions other than the 7Q10 flow rate and, thus, the District has not iden- tified any regulatory basis for the Region to consider high or average flow rates.
Nevertheless, the Region explained that the data regarding ambient phos-
phorus concentrations in River flows at higher than 7Q10 indicate that there is no or little dilution available in the River flow. The Region explained that the Dis-
53 See U.S. Army Corps of Engineers, Phase I: Water Quality Evaluation and Modeling of the
Massachusetts Blackstone River (Draft 2004); MassDEP, Blackstone River Watershed 2003 DWM Water Quality Monitoring Data (May 2005).
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638 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
trict’s “discharge dominates the flow in the river under low flow conditions and during most storm events.” RTC at 60. Specifically, the Region explained:
Wet weather monitoring conducted by MassDEP under its
Smart Monitoring program at a water quality station
(Middle River) just upstream of the UBWPAD discharge,
at a time when the Worcester Combined Sewer Overflow
Facility upstream was not discharging, resulted in total
phosphorus concentrations ranging from 45 – 330 g/l with
an average of 132 g/l (MassDEP Smart Monitoring data:
9/20/2000, 11/20/2003, 4/28/2004, 6/23/2004). The lack
of dilution and the elevated background concentrations of
phosphorus during wet weather events supports the appli-
cability of the 0.1 mg/l total phosphorus limit under all
flow conditions.
RTC at 60.
The District argues that the Region’s response to comments inappropriately
excluded data points that would have produced lower mean and median values. Dist. Supp. Pet. at 37. The District, however, fails to state that the excluded data points are not representative of high flow, or wet weather events, and therefore are not relevant to the issue the Region was analyzing, namely whether the Dis- trict’s discharges would be diluted during high flows. There is no clear error in the Region’s decision to exclude these data points for that analysis. Similarly, there is no clear error in the Region’s decision to consider one somewhat higher data point as representative of the River’s high flow conditions. The District’s argument that this data point is an “outlier,” without more, is not a persuasive explanation as to why the data utilized by the Region is not representative. Absent such an explana- tion, the Board will not unseat the Region’s technical judgment on representative data. In re Wash. Aqueduct Water Supply Syst., 11 E.A.D. 565, 584 (EAB 2004) (selection of representative data is a technical judgment that falls within the per- mit issuer’s discretion and technical expertise).54
For all of these reasons, the Board concludes that the District has not
demonstrated that the Region’s decision to set the Permit’s total phosphorus limit at 0.1 mg/l is clearly erroneous or an abuse of discretion.
54 Even utilizing the data the District advocates at most would result in a background River
concentration that is a few hundredths of a mg/l lower than the identified 0.1 mg/l criterion. Dist. Supp. Pet. at 37. The District has not shown that such a small amount of possible dilution would allow a materially higher Permit limit.
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 639
F. The Permit’s Fecal Coliform Limit
The Region set the water quality-based effluent limit for fecal coliform at
200 colony forming units (“cfu”)/100 ml as a monthly geometric mean and 400 cfu/100 ml as a daily maximum for the period of April 1 through October 31, and for the period of November 1 through March 31, the Region set the limit at a monthly geometric mean of 571 cfu/100 ml and a daily maximum of 1429 cfu/100 ml. Permit at 4, 8 n. 6. The District does not object to the warm-weather limit for the period of April 1 to October 31; but the District does object to the cold-weather limit applicable to November 1 through March 31. Dist. Supp. Pet. at 39-43. The District states that the cold weather limit has the effect of requiring disinfectant treatment year-round and the District believes that this is not necessary to ensure compliance with Rhode Island’s water quality standards.
The District, in effect, argues that the Region should have ignored Rhode
Island’s water quality standard55 because it designates a use for these waters – primary human contact – that does not occur in cold weather. The District argues as follows:
Even if winter disinfection were necessary to protect pri-
mary contact recreation in Rhode Island, there are no
places for engaging in such which might be impacted by
the District’s discharge. The winter effluent limit has been
set to protect a use that does not occur in areas not desig-
nated for that use.
Dist. Supp. Pet. at 40. The District also connects this argument regarding the River’s designated use with challenges to the sufficiency of the data the Region used in its reasonable potential analysis – the District states that the Region “at- tempt[s] to protect a non-existent use with unsound science.” Id. at 43. Specifi- cally, the District asserts that the Region relied on data that is both old and limited in number. Id. at 41. The District argues further that the Region’s analysis failed both to account for dilution of the Region’s discharge in the Blackstone River and to take into account, and control, other sources of fecal coliform. Id. at 41-42.
The District’s arguments, however, fail to demonstrate clear error or abuse
of discretion in the Region’s decision. The District’s argument regarding what it
55 The District asserts, without citation to any legal authority, that “the Region must exercise
its own judgment and analysis in determining the impact on a downstream state, not merely implement that state’s regulation in its stead. Here, given the absence of any real evidence connecting the Dis- trict’s discharge to impairment of designated uses, the CWA does not authorize the imposition of water quality-based effluent limits based on Rhode Island standards.” Dist. Supp. Pet. at 43.
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asserts is the “non-existent use” of the Rivers for primary human contact during the cold-weather period conflates the notion of “existing use” with that of “desig- nated use.” Rhode Island law defines “designated uses” as “those uses specified in water quality standards for each waterbody or segment whether or not they are being attained.” 12-190-001 R.I. Code R. § 7. This meaning is confirmed by con- trast with the definition of “existing use,” which means the uses “that are actually attained in a waterbody on or after November 28, 1975.” Id. (emphasis added).
Here, Rhode Island water quality standards classify the Blackstone River as
“B1” and the Seekonk River as “SB1.” Both class B1 and SB1 waters “are desig- nated for primary and secondary contact recreational activities.” 12-190-001 R.I. Code R. § 8.B.(1)(d), (2)(c) (emphasis added). Because this regulation uses the word “designated,” rather than “existing,” it unambiguously describes the waters falling within these classes as having a designated use of primary human contact, and because this is the designated use, it applies “whether or not [the uses] are being attained.” 12-190-001 R.I. Code R. § 7. The applicable Rhode Island water quality regulations also do not contain a seasonal exclusion for a cold-weather period. 12-190-001 R.I. Code R. § 8.B.(1)(d), (2)(c). Thus, there is no ambiguity in Rhode Island’s law establishing a year-round designated use for the Blackstone and Seekonk Rivers as including both primary and secondary contact recreational activities.
There is also no ambiguity, or seasonal exception, in Rhode Island’s
numeric criterion for fecal coliform for these waters. Class B1 waters must com- ply with the following numeric criterion for fecal coliform: “Not to exceed a geo- metric mean value of 200 [MPN/100 ml] and not more than 20% of the total samples taken shall exceed 500 [MPN/100 ml].” 12-190-001 R.I. Code R.
§ 8.D.(2) tbl.1.56 Class SB1 waters must comply with a criterion of 50 MPN/100ml, geometric mean. Id. tbl.2.
The applicable federal regulations also are not ambiguous: those regulations
require that the Permit the Region issues “shall include” water quality-based efflu- ent limits to “[a]chieve water quality standards” established by Rhode Island. 40 C.F.R. § 122.44(d)(1). Specifically, “[l]imitations must control all pollutants” that may cause, contribute to, or have a reasonable potential to cause a violation of Rhode Island’s water quality standards. Id. § 122.44(d)(1)(i) (emphasis added). The District has cited no legal authority – and none exists – for the Region to ignore these clear requirements of the federal NPDES permitting regulations and Rhode Island’s water quality standards. Thus, the Board must reject the District’s argument that the Region has authority to issue a permit with a seasonal exception
56 The Region based its decision on a version of Rhode Island’s water quality standards that
has subsequently been replaced by Rhode Island and approved by EPA with a more stringent fecal coliform criteria providing that not more than 10% of the samples may exceed 400 MPN/100 ml.
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 641
for controlling fecal coliform in cases, like the present one, where the Region determined that the fecal coliform discharges have the reasonable potential to vio- late Rhode Island’s water quality standards.
The District also has not established clear error or abuse of discretion in the
Region’s determination that the District’s fecal coliform discharges have reasona- ble potential to violate Rhode Island’s numeric criterion for fecal coliform. The Region based its interpretation on water quality sampling collected in the Black- stone River in 2005 and 2006 at the “last accessible point on the main stem of the Blackstone River prior to its crossing the MA-RI border.” Fact Sheet at 8. The Region described the data and its conclusions drawn from the data as follows:
This sampling included monthly samples collected during
dry weather from November 2005 through February 2006,
a period during which the upstream Massachusetts
POTWs were not disinfecting. Fecal coliform counts of
1700, 1300, 700, and 1700 MPN/100 ml were recorded
during this period. The geometric mean of these samples
is 1273 MPN/100 ml, and all four of the samples ex-
ceeded 500 MPN/100 ml, therefore violating RI water
quality standards. During dry weather, the only significant
sources of fecal coliform bacteria in the river are up-
stream POTWs. The sampling also included monthly
samples collected during April 2005 and October 2005, a
period during which upstream POTWs are disinfecting;
samples collected during this time indicate the criteria
were generally met. EPA believes that the discharge from
[the District], being the dominant point source on the
river, has the reasonable potential to cause or contribute to
violations of Rhode Island Water Quality Standards.
Fact Sheet at 8. In its response to comments, the Region also discussed data show- ing a similar nearly uniform violation of water quality standards during wet weather, or high flow, events. RTC at 63-64. The Region also explained that there is effectively no dilution available – the Region reached this conclusion by ob- serving that, in periods when the POTWs are disinfecting, the River flow is in compliance with the fecal coliform criteria during low flow conditions, but is in violation during wet weather conditions. Id. Thus, the Region concluded that, during wet weather conditions, the River is in violation from other sources and the District’s discharges would not be diluted by a less polluted River flow.
Other than arguing that the wet-weather data are too old and that there are
not a sufficient number of samples, Dist. Supp. Pet. at 41, the District does not identify any error in the Region’s analysis. Notably, the District does not point to any record evidence that would contradict the data the Region relied upon. Mere
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642 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
argument about data age, without evidence of changed conditions, or mere argu- ment about the number of samples, without evidence showing that the number of samples is inadequate, is not sufficient to establish clear error in the Region’s technical determination that these data are representative. In re Wash. Aqueduct Water Supply Syst., 11 E.A.D. 565, 584 (EAB 2004) (selection of representative data is a technical judgment that falls within the permit issuer’s discretion and technical expertise).
The Board also rejects the District’s contention that the Region failed to
appropriately take into account “other sources of coliform in the River.” Dist. Supp. Pet. at 42. The Region’s analysis shows that it considered whether other sources would be a significant contributor during low flow conditions and the Region concluded that “[d]uring dry weather, the only significant sources of fecal coliform bacteria in the river are upstream POTWs” and the District is the domi- nant one. Fact Sheet at 8. The Region additionally considered the existence of other sources in its analysis of dilution during wet weather conditions. RTC at 64. The Board also rejects the District’s contention that the Region’s analysis “puts the entire burden of coliform compliance on the District.” Dist. Supp. Pet. at 42. The Permit’s conditions only require the District to control the fecal coliform dis- charged from the District’s outfall; the Permit does not require the District to limit or control fecal coliform in the background River flow or from any source other than the District’s own discharges. Accordingly, the District has failed to show clear error or abuse of discretion in the Region’s determination that the District’s fecal coliform discharges have the reasonable potential to cause or contribute to violations of Rhode Island’s water quality standards or the Region’s establishment of the Permit’s numeric limit for fecal coliform.
G. The Permit’s Aluminum Limit
The Permit, when initially issued, did not include a limit for total aluminum,
and Trout Unlimited filed a petition challenging the absence of an aluminum limit. In its response brief, the Region stated that it “plans to issue a draft permit modification to establish an aluminum effluent limit,” Region’s Resp. Br. at 133, and on April 15, 2009, the Region issued a Permit modification setting the Per- mit’s aluminum limit at 87 g/l. The Region explained that this limit is required by Massachusetts’ water quality standards and EPA’s chronic57 aluminum criteria recommended in Office of Water, U.S. EPA, National Recommended Water Quality Criteria: 2002, EPA 822-R-02-047 (Nov. 2002) (“EPA’s 2002 National Criteria”). In essence, the Region determined that the Permit’s limit must be set at
57 The Region explained that permit limits based on numeric criteria within state water quality
standards typically use both the acute and chronic criteria: “Maximum daily limits are generally de- rived from acute aquatic life criteria, and average monthly limits are generally derived from chronic aquatic life criteria.” 2009 Permit Modification Statement of Basis at 5 (hereinafter “Al SOB”).
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 643
the level of EPA’s aluminum criterion because Massachusetts’ regulations require use of EPA’s criterion and both the background River flow and the District’s dis- charges exceed the criterion level, thus indicating that any discharge by the Re- gion will contribute to the existing violation of the criterion. Al SOB at 7-8; 2009 Permit Modification Response to Comments (“Al RTC”) at 5-6.
On May 20, 2009, the District filed a petition seeking review of the alumi-
num limit. See Petition for Review of Revised Permit Conditions and Motion of the Permittee, Upper Blackstone Water Pollution Abatement District, to Consoli- date this Petition with Others Related to this Permit, NPDES Appeal No. 08-11 (May 20, 2009) (herein “Dist. Al Pet.”). By order dated August 6, 2009, the Board consolidated the District’s petition for review of the Permit modification with the District’s petition for review of other conditions of the Permit.
The District challenges both the water quality criterion the Region applied
in its analysis and the data the Region used in determining that the District’s dis- charges have a reasonable potential to cause violations of that criterion. The Dis- trict argues that correcting the criterion and correcting what it alleges are data errors demonstrate that the District’s aluminum discharges do not cause, contrib- ute to, or have the reasonable potential to cause violations of Massachusetts water quality standards and that the particular numeric limit the Region selected, 87 g/l, is too stringent. District’s Al. Pet. at 4. The District argues that it was clear error for the Region to apply an aluminum criterion drawn from EPA’s 2002 National Criteria, and the District contends that the Region, instead, should develop a site-specific criterion based on data regarding “naturally occurring background concentrations” in the River, which the District argues would produce a criterion higher than the aluminum concentration found in the District’s discharges. Dist. Al Pet. at 2-3.58 The District argues that its discharges are consistently below the background level and, thus, would not violate a criterion reflecting the back- ground concentration and no limit would be required. Alternatively, the District argues that the limit should be set at the higher background level. These argu- ments, however, fail to show that the Region committed clear error or abused its discretion.
Massachusetts water quality standards require “additional minimum criteria”
as follows:
58 Finally, the District argues that the Region’s decision to modify the District’s Permit just six
months after issuing the Permit raises public policy questions that the Board should review. District’s Al. Pet. at 14-16. The District argues that the Region has changed its position merely in response to Trout Unlimited’s original petition for review and not based on any new or different scientific analysis. Id. The District further contends that the Region’s sudden change frustrates the District’s efforts at capital planning and restricts the District’s options for controlling phosphorus. Id.
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644 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
All surface waters shall be free from pollutants in concen-
trations or combinations that are toxic to humans, aquatic
life or wildlife. For pollutants not otherwise listed in 314
CMR § 4.00, the National Recommended Water Quality
Criteria: 2002, EPA 822R-02-047, November 2002 pub-
lished by EPA pursuant to Section 304(a) of the Federal
Water Pollution Control Act, are the allowable receiving
water concentrations for the affected waters, unless the
Department either establishes a site specific criterion or
determines that naturally occurring background concen-
trations are higher.
314 C.M.R. § 4.05(5)(e). In responding to public comments, the Region explained that “[a]luminum has not been ‘otherwise listed’ in 314 CMR § 4.00 and no site-specific criteria for the Blackstone River have been developed for this pollu- tant.” Al RTC at 6. The District does not dispute this conclusion; instead, the District argues that, while the the Massachusetts’ regulations generally require ap- plication of EPA’s national criteria, there is an exception to this requirement ap- plicable where the “naturally occurring background concentrations are higher” and, in such cases, “the background concentration of aluminum becomes the rele- vant water quality standard.” Dist. Al Pet. at 3.
The Region addressed this contention by stating in its response to comments
that the District had not shown that elevated background aluminum levels in the Blackstone River are, in fact, naturally occurring. Specifically, the Region ex- plained as follows:
[W]e also do not see any demonstration in the graph (or
elsewhere in the comments) that the aluminum levels are
naturally occurring. The presentation does not factor in, or
even acknowledge the multitude of industrial and com-
mercial indirect dischargers to the wastewater system and
the addition of aluminum by the City of Worcester,
UBWPAD’s largest member community, as part of its
drinking water treatment process. Similarly, given the
highly urbanized nature of the watershed above the dis-
charge, including numerous industrial and commercial
sites with storm water runoff and some with direct waste-
water discharges to the river, including the City of
Worcester discharging aluminum to the receiving water as
part of the water supply treatment process, the commenter
has not made a sufficient case that the ambient levels are
naturally occurring.
Al RTC at 3.
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 645
On appeal, the District attempts to refute the Region’s determination that the
District had “not made a sufficient case that the ambient levels are naturally oc- curring” by citing data that is not part of the administrative record. See Dist. Al Pet. at 9-14. Specifically, the District cites data collected by the Worcester Water Department from a point between the Kendall Reservoir and the Holden Reser- voir. Id. at 11-12. The District’s arguments based on this information introduced for the first time on appeal must be rejected. The Region was required to make its decision on the administrative record established pursuant to 40 C.F.R. § 124.18, and whether the Region committed clear error is measured by the record that was before the Region at the time it made its decision. Deseret Power, 14 E.A.D. at 7 n.3; In re Kendall New Century, 11 E.A.D. 40, 55 (EAB 2003); In re Steel Dy- namics, 9 E.A.D. 165, 230 (EAB 2001); In re Maui Elec. Co, 8 E.A.D. 1, 9-10 (EAB 1998).
The District’s arguments based on the data and analysis that is included in
the administrative record do not show clear error in the Region’s determination. The District characterizes the record data as evidencing a “correlation” between elevated aluminum concentrations in the District’s discharges and elevated alumi- num concentrations in the background River flow. Dist. Al Pet. at 10; Letter from Robert D. Cox, Jr., Attorney for the District, to Meredith Timony, U.S. EPA Re- gion 1 NPDES Unit, at 3 (Feb. 27, 2009) (hereinafter “Dist. Al Comment Letter”). The District has inappropriately presented the data, which were collected on spe- cific days separated by many months, on a line graph, leaving the false impression of continuity between the data points. Properly analyzed as independent data points, the data reveal that on some days there were narrow differences and on other days a wide difference between the concentrations in the River and in the District’s discharges. Thus, the Region correctly rejected the District’s assertion, stating in its response to comments that the District’s graph does not show a direct correlation between the aluminum concentration in the District’s discharge and the concentration in the River flow. Al RTC at 3. Moreover, the Region also correctly stated in its response to comments that the identification of a correlation, in any event, does not speak to the question whether the background aluminum concen- tration is “naturally occurring” rather than caused by the variety of anthropogenic sources the Region mentioned in its response to comments. Al RTC at 3. The District’s recitation on appeal of its assertion that there is a direct correlation is simply not sufficient to demonstrate that the Region clearly erred in rejecting the District’s “naturally occurring” theory by observing that the data do not show a direct correlation and do not address the many anthropogenic sources in the wa- tershed that may be responsible for changes in the background aluminum concentration.
The one study the District attached to its comment letter merely mentioned
acidic precipitation as a possible cause of aluminum found in rivers and streams in the northeast – it does not speak either to whether acidic precipitation is “natu- rally occurring” rather than caused by human activity or, more importantly, to
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646 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
whether acidic precipitation causes the aluminum concentrations in the Black- stone River rather than the anthropogenic sources the Region mentioned in its response to comments. Compare Al RTC at 3 with Monette, M.Y. & McCormick, S.D., Impacts of Short-term Acid and Aluminum Exposure on Atlantic Salmon (Salmo Salar) Physiology: a Direct Comparison of Parr and Smolts, 86 Aquatic Toxicology 216-226 (2008). Because the record evidence the District cites does not refute the Region’s response to comments, the Board must reject the District’s contention that the Region clearly erred in concluding that it must apply EPA’s nationally recommended criterion of 87 ug/l for aluminum in the Blackstone River.59
To determine whether the District’s discharges may exceed the criterion of
87 ug/l, and therefore, have the potential to cause a violation of Massachusetts’ water quality standards, EPA’s guidance recommends that the permit issuer use the maximum concentration of the pollutant measured in the discharger’s effluent. Office of Water, U.S. EPA, U.S. EPA NPDES Permit Writers’ Manual, ch. 6.3.2 (Dec. 1996). Here, the Region determined that “the concentration of aluminum in the effluent exceeded the chronic criterion” on numerous occasions and “[t]herefore, there is reasonable potential for the discharge to cause or contribute to an excursion above the criteria in the downstream receiving water even if the ambient concentration were assumed to be zero.” Al SOB at 7. The Region also concluded that the average concentration of aluminum in the District’s effluent during typical low flow periods was 127 ug/l, well above the criterion of 87 ug/l, also indicating a reasonable potential for the District’s discharges to cause or con- tribute to violations of the criterion. Id. The District challenges this determination on appeal by identifying three types of data errors it contends establish clear error and require remand. Dist. Al Pet. at 4-13. Notably, however, the District does not challenge the Region’s determination that the data demonstrate that the Region’s discharges exceeded the 87 ug/l criterion on some occasions; instead, the District only argues that its average discharge concentration is lower than 127 ug/l. Id. The Board does not need to reach the specific arguments the District makes on appeal60 – it is sufficient that the Region correctly observed that the District’s dis-
59 Rhode Island’s water quality standard for aluminum, which is applicable to the Blackstone
River’s lower reaches, also is 87 g/l. Rhode Island Water Quality Regulations, Rule 8, App. B.
60 Specifically, the District argues that the Region included in its averages data taken when the
river was flowing at a high level and excluded data from actual low-flow periods falling outside of typical low flow months. Dist. Al Pet. at 4-6. The District also argues that the Region’s analysis inap- propriately used in its averaging the method detection limit for some of the data points of 100 ug/l, thereby increasing the average. Id. at 7-9. The Region adequately addressed these comments in the Region’s response to public comments. Al RTC at 2-4. On appeal, the District raises a new argument that one data point is an “outlier” reflecting a “plant upset” and thus not representative. Dist. Al Pet. at 6. Notably, the District included this data point in its own calculation of its average aluminum concentration as presented in the District’s public comment letter. Dist. Al Comment Letter at 3, tbl. 1.
Continued
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 647
charges have been measured exceeding the applicable 87 ug/l criterion. This is sufficient to support the Region’s conclusion setting the Permit limit at the level of the criterion consistent with EPA guidance. Moreover, the District’s own calcu- lation of its average concentration as presented in the District’s public comments was 92 ug/l, exceeding the criterion and justifying the Permit’s limit. Dist. Al Comment Letter at 3, tbl. 1.
For the foregoing reasons, the Board concludes no clear error in the Re-
gion’s determination establishing the Permit’s total aluminum limit at 87 ug/l.
H. The Various Metals Limits and Sampling and Monitoring
Requirements Are Appropriate
In a series of short sections beginning on page 51 and extending to page 57
of its Supplemental Petition, the District raises a number of separate issues. The Board rejects these issues. The District has not shown that the issues were raised during the public comment period, or the issues are not sufficiently specific, or lack record support, or the District failed to address the Region’s explanation of its decision and response to comments.
Specifically, the District mentions total residual chlorine and states the Dis-
trict’s understanding of the Permit’s sampling requirements, but the District does not identify any specific error or problem with the Permit’s terms. Dist. Supp. Pet. at 54. Accordingly, the District’s statements regarding total residual chlorine do not appear to raise an issue requesting Board review and therefore review of the total residual chlorine Permit conditions are denied.
The District states that it is concerned about what it refers to as the Permit’s
rigid schedule for WET testing, stating that “strict adherence to this schedule may prove difficult or impossible at times” and requesting that language be added to the Permit to address its concern. Dist. Supp. Pet. at 51-52. The District, however, fails to explain why the following statement in the Permit is clearly erroneous or an abuse of discretion: “[o]ccasional deviations from the routine sampling pro- gram are allowed, but the reason for the deviation shall be documented in corre- spondence appended to the applicable discharge monitoring report.” Permit at 6. Accordingly, review of the WET test schedule is denied.
The District objects to the wet weather fecal coliform sampling require-
ments on the grounds of the difficulty in performing the EPA-approved sampling
(continued)
Because the District did not raise its issues and arguments concerning this data point during the public comment period and those arguments were reasonably ascertainable at that time, the District is barred from raising its challenges for the first time on appeal. Moreover, the District has not provided evi- dence demonstrating that the conditions resulting in this “outlier” data point will not reoccur.
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648 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
protocol. Dist. Supp. Pet. at 51-52. The District observes that the EPA-approved protocol requires trained laboratory personnel and that another test available on the market can be performed by the District’s staff. Id. The District’s argument, however, fails to address the regulatory requirement that monitoring be conducted using EPA-approved methods. See 40 C.F.R. § 122.44(i)(1)(iv). Accordingly, the District has failed to demonstrate clear error in the monitoring requirements the Region included in the Permit and review of this requirement is denied.
The District argues that the ammonia limit should not be stated both as a
mass limit and also as a concentration limit. Dist. Supp. Pet. at 53-54. The District demonstrates that during the public comment period it asked for clarification re- garding which limit would be controlling, but the District does not demonstrate that it objected to the limit expressed both as a mass limit and as a concentration limit. The regulations authorize the Region to impose limits stated both as mass limit and simultaneously as a concentration limit. 40 C.F.R. § 122.45(f)(2). In ad- dition, the Permit’s limit for ammonia is identical to the limit in the District’s previous 2001 permit. Fact Sheet at 10-11. Because this issue was not preserved for appeal by being raised during the public comment period and since it was clearly ascertainable at that time, review is denied. See Part II.E.2.a above (dis- cussing requirements for issues and arguments to be raised on appeal).
The District objects that the copper limit is based on dilution at the point of
discharge, but should instead be based on dilution at the Rhode Island border. Dist. Supp. Pet. at 54-55. The District has made no demonstration that this issue was raised during the public comment period or demonstrated that this issue was not ascertainable during the public comment period. The District only demon- strated that it commented during the public comment period that the copper limit should be based on the Massachusetts site-specific water quality standard. Id. The final permit limit is the same as proposed in the draft permit, and the Region explained why adjusting the copper limit based on the Massachusetts site-specific criteria would not ensure compliance with Rhode Island’s water quality standards. RTC at 13-14. Accordingly, review of the copper limit is denied. See Part II.E.2.a above (discussing requirements for issues and arguments to be raised on appeal).
The District argues that the Permit should not impose a cadmium effluent
limit that is below the levels that existing technology can detect. Dist. Supp. Pet. at 55. Although the District demonstrates that New England Plating’s public com- ments noted that the cadmium limit is below the current technology detection limit, the District has not demonstrated that any public comments requested that the Permit’s cadmium limit be made less stringent for this or any other reason. Accordingly, this issue was not preserved for appeal and review of the cadmium limit is denied. See Part II.E.2.a above (discussing requirements for issues and arguments to be raised on appeal).
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 649
The District objects to the Permit’s new monitoring requirements for lead.
Dist. Supp. Pet. at 56. The District notes that the lead monitoring requirements were not included in the draft permit and, therefore, the District may raise issues regarding this requirement even if it did not raise them during the public comment period. Id. The District argues, without providing any evidence support, that its lead discharge levels are “consistently below levels of concern” and therefore monitoring is not necessary. Id. The Region fully explained in its response to comments why it determined that monitoring lead is necessary. RTC at 14-15. Specifically, the Region explained that although the District’s lead discharges have been below the detection levels of the test the District has used (ranging from 5-10 ug/l), these “detection levels are higher than the ambient criteria val- ues.” Id. Specifically, Massachusetts criterion for lead is 1.8 ug/l. 31 C.M.R.
§ 405(5)(e). Because the District has provided no evidence to refute the Region’s rationale articulated in its response to comments, the District’s petition lacks suffi- cient support, and review of the lead monitoring requirement is denied.
The District objects to the Permit’s monitoring requirement for nickel. Dist.
Supp. Pet. at 56. The District notes that the nickel monitoring requirements were not included in the draft permit and, therefore, the District may raise issues re- garding this requirement even if it did not raise them during the public comment period. Id. The District argues, without providing any evidence support, that its nickel discharge levels are “consistently below levels of concern” and therefore monitoring is not necessary. Id. The District, however, does not address the Re- gion’s statement in its response to comments that the monitoring requirement for nickel only requires the District to separately include nickel in its monitoring re- ports showing the results of nickel monitoring otherwise already required as part of the WET tests. See RTC at 15. The District has not demonstrated any clear error or abuse of discretion in the Region’s decision to require separate reporting of monitoring already conducted as part of the WET test and, accordingly, review of this issue is denied.
The District also objects to the Permit condition requiring the District to
complete an infiltration and inflow control plan within six months. Dist. Supp. Pet. at 57. The District, however, has failed to provide any evidence supporting its objection that six months is an inadequate time. Nevertheless, because this condi- tion applies both to the District and to the co-permittees and because the Board is remanding the Permit’s co-permittee condition, the Board remands this require- ment for preparation of an inflow and infiltration plan as it relates to the co-permittees, and the Board denies review of this provision with respect to the District, which remains obligated to control inflow and infiltration. The Region explained that these operation and maintenance requirements are authorized by 40 C.F.R. § 122.41(e), (d), and that the Permit’s specific inflow and infiltration conditions are required by Massachusetts’ state certification issued under section 401 of the CWA. Fact Sheet at 18-19.
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650 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
I. The Region Did Not Abuse its Discretion in Denying Compliance Schedules for the Nitrogen and Phosphorus Limits to be Included as Permit Conditions
The District argues that the Region clearly erred or abused its discretion in
issuing the Permit without providing a schedule for delayed compliance with the total phosphorus and total nitrogen limits. Dist. Supp. Pet. at 44-51. The District argues that the Region clearly erred in interpreting Rhode Island law and abused its discretion under Massachusetts law. Id. The District acknowledges that the federal NPDES permitting regulations, 40 C.F.R. § 122.47(a), grant the permit issuer discretion to include a compliance schedule in a permit only where the ap- plicable state regulations authorize the permit to contain a schedule for compli- ance. Id. at 48. The District argues that Massachusetts law governing the Permit’s phosphorus limit grants the permit issuer discretion to include a compliance schedule and that the Region abused its discretion in denying a compliance sched- ule in the present case where it is clear that the District cannot immediately com- ply with the Permit’s total phosphorus limit. Id. at 45-46. The District also argues that the Region clearly erred in concluding that Rhode Island law governing the Permit’s total nitrogen limit does not authorize a compliance schedule to be in- cluded in the permit. Id. at 46-48. The District does acknowledge that Rhode Is- land has interpreted its law as not authorizing compliance schedules, but the Dis- trict argues that the Region should ignore Rhode Island’s interpretation and, instead, should adopt the interpretation of Rhode Island law the District offers in its supplemental petition. Id.
Contrary to the District’s contention, the Region did not err in following
Rhode Island’s interpretation of its regulations governing compliance schedules. A Region’s authority to delay compliance with state water quality standards through a compliance schedule made part of an EPA-issued NPDES permit is limited to those circumstances in which the applicable state’s water quality stan- dards or its implementing regulations “can be fairly construed as authorizing a schedule of compliance.” In re Star-Kist Caribe, Inc., 3 E.A.D. 172, 175 (Adm’r 1990), modification denied, 4 E.A.D. 33, 34 (EAB 1992); In re City of Ames, Iowa, 6 E.A.D. 374, 380 (EAB 1996). The Administrator explained that “Con- gress intended the States, not EPA, to become the proper authorities to define appropriate deadlines for complying with their own State law requirements. Just how stringent such limitations are, or whether limited forms of relief such as vari- ances, mixing zones, and compliance schedules should be granted are purely mat- ters of State law, which EPA has no authority to override.” Star-Kist, 3 E.A.D. at 182.
Absent authority for delay granted by the applicable state water quality
standard, the NPDES permit must require compliance with state water quality standards immediately upon issuance. 40 C.F.R. § 122.4(d); see In re J & L Spe- cialty Prods. Corp., 5 E.A.D. 333, 344 (EAB 1994). “[T]he only instance in which
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UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT 651
the permit may lawfully authorize a permittee to delay compliance after July 1, 1977, pursuant to a schedule of compliance, is when the water quality standard itself (or the State’s implementing regulations) can be fairly construed as authoriz- ing a schedule of compliance.” Star-Kist, 3 E.A.D. at 175.61 Accordingly, in this case, the Region’s capacity to provide a compliance schedule for total nitrogen and total phosphorus discharge limits is circumscribed by what Rhode Island’s and Massachusetts’ water quality standards allow. Here, the Region explained as follows:
Rhode Island’s Water Quality Standards do not include
provisions allowing for schedules in permits; Rhode Is-
land’s practice is to incorporate schedules in an Adminis-
trative Compliance Order or a Consent Agreement. Be-
cause the nitrogen limit in the UBWPAD permit is based
on Rhode Island’s standards, EPA is not including a com-
pliance schedule in the permit.
RTC at 58. The District does not dispute that Rhode Island’s interpretation and practice incorporates compliance schedules, not in permits, but instead in compli- ance orders or consent agreements. See RTC at 58. There is no clear error in the Region’s statement – the Rhode Island state regulation the District cites does not specifically mention compliance schedules for water quality-based effluent limits and it does not authorize extending compliance beyond the statutory deadline. See 12-190-001 R.I. Code R. §§ 20.01, .02(a).
The Region did note that Massachusetts law applicable to the Permit’s total
phosphorus limit does authorize, at the permit issuer’s discretion, a compliance schedule to be included in the permit. However, the Region explained that “[i]n this matter, there are many overlapping issues related to the planning, design and construction of facilities to meet the limits for phosphorus and nitrogen. * * * In light of these overlapping issues and the fact that Rhode Island standards do not include provisions allowing for schedules, EPA intends to issue a compliance schedule to meet both the phosphorus and nitrogen limits in a separate administra- tive order.” RTC at 19. There is no clear error or abuse of discretion in this approach.
J. The Region Appropriately Considered Environmental Justice Issues
The District argues that the Region committed “clear error in not adhering
to Executive Order 12898 and the local implementing policy and action plan.”
61 The Board rejects the District’s contention that Rhode Island’s law governing compliance
schedules is procedural and not part of Rhode Island’s water quality standards. See Dist. Supp. Pet. at 64-65.
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652 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
Dist. Supp. Pet. at 68. The District argues that the Region failed to comply with the President’s Executive Order on environmental justice and with the Regional environmental justice action plan. The District contends that these directives pro- vide for additional notice or hearing opportunity to environmental justice popula- tions that may “bear the burden of increased rates that will be necessary to fund the facility upgrades required by the Permit.” Dist. Supp. Pet. at 66.
The District’s arguments are unpersuasive. Although environmental justice
issues are considered in permitting proceedings, and the Board has remanded a permit for further environmental justice analysis, In re Knauf Fiber Glass, GmbH, 8 E.A.D. 121, 174-75 (EAB 1999) (remand to provide an environmental justice analysis to supplement the Clean Air Act permitting record); see also In re Shell Offshore, Inc., OCS Appeal Nos. 07-01 & 07-02 (EAB Sept. 14, 2007); In re AES Puerto Rico, L.P., 8 E.A.D. 324, 351 (EAB 1999), aff’d sub nom Sur Contra La Contaminacion v. EPA, 202 F.3d 443 (1st Cir. 2000), nevertheless, the District is not correct in its characterization of the Region’s environmental justice obligation. Executive Order 12898 instructs federal agencies to address, as appropriate, “dis- proportionately high and adverse human health or environmental effects of [their] programs, policies, and activities on minority and low-income populations
-
- *.” Federal Actions to Address Environmental Justice in Minority Popula-
tions and Low-Income Populations, Exec. Order 12898, 59 Fed. Reg. 7629 (Feb. 11, 1994). The Executive Order, thus, speaks to human health and environmental effects; it does not require federal agencies to consider issues regarding cost or rate changes as the District argues. Here, the District’s arguments on appeal do not allege any facts showing a “disproprotionately high” impact on environmental jus- tice populations, and the District’s arguments do not allege “adverse human health or environmental effects” on those populations. Thus, the District has not raised an environmental justice issue cognizable under Executive Order 12898. The Dis- trict’s arguments also do not address the Region’s response to comments regarding its consideration of environmental justice issues. See RTC at 23, 113-14. Accord- ingly, review is denied.III. CONCLUSION
For the reasons discussed below, the Board remands the Permit’s provisions
governing the requirements imposed upon co-permittees. The Board concludes the Region made no clear error with respect to all other issues raised on appeal. The Board also concludes no issues involving either the Region’s exercise of dis- cretion or an important policy consideration that warrant a change to the condi- tions of the permit. An appeal of the Region’s decision on remand is required to exhaust administrative remedies. 40 C.F.R. § 124.19(f)(1)(iii).So Ordered.
- *.” Federal Actions to Address Environmental Justice in Minority Popula-
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