City of Cambridge, Massachusetts (Board decision, August 30, 2010)
In re City of Cambridge, Massachusetts (EAB NPDES Appeal No. 09-17): review denied for permit challenges
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Plain-English summary
The City of Cambridge, Massachusetts, held NPDES Permit No. MA0101974 for combined sewer overflow discharges from eleven outfalls into the Alewife Brook and Charles River during certain wet-weather conditions. Petitioner Stephen H. Kaiser argued that the permit needed additional conditions tied to a drainage project, flap gates, an inflow study, and monitoring gauges. The Environmental Appeals Board found that the petitioner had not preserved one requested issue and had not shown that EPA Region 1 clearly erred or abused its discretion in addressing the other requests. The Board denied review of the permit.
Decision snapshot
- Cited authorities: 33 U.S.C. §§ 1311 and 1342; 40 C.F.R. §§ 124.13 and 124.19
- Outcome: The Board denied review of the NPDES permit on the grounds proposed by the petitioner.
- Key point: A permit challenger must preserve the issue and substantively show clear error or abuse of discretion in the permitting authority's response.
Full text (EPA EAB public release)
BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
)
In re: City of Cambridge )
) NPDES Appeal No. 09-17
Permit No. MA 0101974 ) AUG 3 0 2010
---------------------------------)
Clerk, Environ~ard
INITIALS
ORDER DENYING REVIEW
1. STATEMENT OF THE CASE
Petitioner, Stephen H. Kaiser ("Mr. Kaiser" or "Petitioner"), seeks review of a National
Pollutant Discharge Elimination System! ("NPDES") permit decision issued by U.S.
Environmental Protection Agency ("EPA" or "Agency") Region 1 ("Region") that would allow
the Department of Public Works from the City of Cambridge, Massachusetts ("Permittee" or
"City") to discharge from its combined sewer system ("CSS,,)2 under certain wet weather
conditions. The Permittee is also participating in the proceedings as an intervenor and opposes
the petition.
! Under the Clean Water Act ("CWA" or "Act"), persons who discharge pollutants from
point sources into waters of the United States must have a permit for the discharge to be lawful. CWA § 301, 33 U.S.c. § 1311. The NPDES program is the principal program under the CWA. CWA § 302, 33 U.S.C. § 1342.
2 According to EPA's Combined Sewer Overflow ("CSO") Control Policy, a CSS is a
wastewater collection system owned by a state or municipality, that conveys sanitary wastewaters and stormwater through a single-pipe system to the treatment plant of a publicly-owned treatment works ("POTW"). Combined Sewer Oveflow (CSO) Control Policy, 59 Fed. Reg. 18688, 18689 (April 19, 1994). At the heart of this appeal is Petitioner's concern about the sufficiency ofthe permit to
evaluate and control alleged inflow from floodwaters into the City's CSS. Petitioner claims that
the permit is deficient because it lacks certain elements and requests that the Board modify the
permit to incorporate them. For the reasons set forth below, the Environmental Appeals Board
("Board") denies review of the permit.
II. ISSUES ON APPEAL
The issues before the Board for decision are:
1. Did the Petitioner meet his burden to show that the Region clearly erred or abused
its discretion by failing to include a provision in the permit that conditions
commencement of a drainage project,3 included in the Massachusetts Water
Resource Authority'S ("MWRA") long-term CSO control plan,4 on the
completion of the inflow study specified in the permit and the identification of
mitigation measures.
2. Did the Petitioner meet his burden to show that the Region clearly erred or abused
its discretion in not including the following provisions in the permit:
3 See infra note 7 (explaining the drainage project, also referred to by the parties as
drainage relief projectJplan).
4 See infra note 7 (explaining the MWRA long-term CSO control plan).
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a) A provision requiring that the inflow study include a "problem statement;"
b) A provision specifying a schedule for installation of flap gates or similar
flow restrictions; and
c) A provision requiring the permittee to monitor and report data from the
"Cambridge monitoring gauges."
The decision below begins with a brief description of the factual and procedural history of
the case (Part III), followed by a summary of the standard of Board review (Part IV), the Board's
analysis of the issues (Part V), the conclusion (part VI), and the order (Part VII).
III. FACTUAL AND PROCEDURAL HISTORY
A. Factual History
On July 24,2009, the Region issued a draft NPDES permit that would allow the City to
discharge combined storm water and sanitary wastewater, referred to as combined sewer
overflow ("CSO"),5 from eleven combined sewer outfalls into the Alewife Brook and Charles
River, provided that the City implements the nine minimum controls (''NMC'') specified in the
permit. 6 See Administrative Record ("A.R.") # 6("Draft Permit") at 1-5. From July 24, 2009, to
5The CSO Control Policy defines CSO "as the discharge from a CSS at a point prior to
the POTW [t]reatment [p]lant." Combined Sewer Overflow (CSO) Control Policy, 59 Fed. Reg. at 18689.
6 CSOs are considered point sources and as such are subject to NPDES permit
requirements, including technology-based and water quality-based requirements. See Combined Sewer Oveflow (CSO) Control Policy, 59 Fed. Reg. at 18689. The CSO Control Policy establishes "NMCs" that all permittees with CSSs that have CSOs must comply with as part of
( continued ...)
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August 22,2009, the Region solicited public comments on the draft permit. See AR.# 39.
During that period, the Region received five sets of written comments, including comments from
Mr. Kaiser. See AR.#s 26-30.
Mr. Kaiser's comments focused primarily on concerns regarding the potential effects of a
drainage projece on 1he Alewife watershed, and its impact on the City's CSS. AR.# 28 (Letter
from Stephen Kaiser to Mr. George Papadopoulos (EPA)) ("Comment Letter") at 2-4. Mr.
Kaiser commented that the drainage project would increase flooding in the Alewife Brook
watershed, which would also result in additional inflow into the City's CSS. See id. at 2-3. In
his comment letter Mr. Kaiser identified what he understood were problems with the drainage
project and the elements that in his opinion needed to be addressed "by planners, engineering
6(...continued)
the technology-based effluent limitations for CSOs. See id. at 18690-91.
7 The CSO Control Policy requires permittees with CSSs to develop a long-term CSO
control plan. Combined Sewer Overflow (CSO) Control Policy, 59 Fed. Reg. at 18690-91. MWRA is responsible for all combined sewer outfalls that are hydraulically connected to its collection system, including the combined sewer outfalls owned and operated by the City. See Region's 1 Memorandum in Opposition of Petition for Review ("Region's Response") at 5; AR.#7 ("Fact Sheet") at 8. In 1997, MWRA completed its final CSO control plan, which includes a drainage project to reduce the frequency and volume of CSO discharges in the Alewife Brook watershed. See AR.# 23 (Notice of Project Change for the Long Term CSO Control Plan for Alewife Brook) ("NPC") Chapter 1. This is the drainage project that is the subject of Mr. Kaiser's concerns and comments.
Hydraulic relief projects, such as this one, as well as separation of sewers for wastewater
and stormwater, and floatable control measures, are implemented, in part, to satisfy a federal court order. See Region's Response at 4 (citing Us. v. Metro. Dist. Comm 'n, No. 85-0489,2005 WL 2542921 (D. Mass 2005)); A.R.#20 (Federal Court Order); AR.#12 ("Final Permit") Att. E.
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designers, and the permitting agency." Id. at 4. His comment letter summarized these problems
as follows:
1. There is no plan at any time in the future for the full separation of combined
sewers in Cambridge;
2. The drainage plan proposed by Cambridge will worsen flooding conditions in
Alewife Brook, and will increase brook inflow into MWRA interceptor sewers
during major storms, with SSO [sanitary sewer overflow] problems worsened
downstream. Cambridge has adopted no mitigation plan;
3. The failure to install flap gates on all reJ;llaining CSO pipes in Cambridge will
result in no reduction in the brook flood inflow through CSO structures into
MWRA interceptor sewers. Such flap gates are needed;
4. There is inadequate data and circulated information on the interaction between
flooding and sewer overflows (both CSO and SSO). More measurements with
greater accuracy need to be made.
/d. at 4. In essence, Mr. Kaiser alleged that the drainage project would worsen flooding
conditions in Alewife Brook, and would increase inflow from Alewife Brook into the City's CSS
during major storms. Id. at 4. To prevent inflow into the City's CSS, Mr. Kaiser recommended
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the installation of flap gates on the City's CSO outfalls. Id. In addition, Mr. Kaiser expressed
concerns about the adequacy of available information and data on the interaction between
flooding and sewer overflows, and recommended that the permit require the City to calibrate, and
report data from, two existing stream gauges (referred to by the parties as the "Cambridge
monitoring gauges"). [d. at 4-S.
On September 30,2009, the Region issued its response to comments and the final permit
decision. See Final Permit; A.R.# 13 (Response to Comments for Final NPDES Permit)
("RTC"). Based on the comments received and information on the drainage project the City had
submitted, the Region decided to incorporate additional requirements in Part LD.S of the draft
permit "to require the [P]ermittee to assess the potential for river inflow into the City's CSS in
the· Alewife Brook watershed and if such potential exists, an assessment of the cost, feasibility,
and effectiveness of installing inflow controls." RTC at 1, 10-11 (Response to Comment C3);
Compare Draft Permit at 6 with Final Permit at 6. 8 Specifically, the permit now requires that the
second Annual NMC Report (due April 30,2011) include:
8 Part I.D. of the permit, entitled Annual Report, requires the Permittee to submit an
annual report by April 30th of each year that includes the elements identified in subsections D.1 through D.6. See Final Permit at S. In the draft permit, subsection D.S only required that the annual report include: (1) "[a] summary of modifications to the approved NMC program that had been evaluated and a description of those [that] will be implemented during the [next] year;" and (2) an updated NMC plan reviewing the current controls and updating them to enhance their effectiveness. Draft Permit at 6. The Region modified subsection D.S by adding the inflow study that is the subject of this appeal.
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1) an assessment of the potential for inflow from Alewife Brook to
* * * the combined sewer system through the existing regulator
structures over a range of flood conditions and corresponding
Brook levels[;] and 2) an assessment ofthe cost, feasibility, and
effectiveness of installing inflow controls on the remaining CSO
outfalls if flow does enter the combined sewer system more
frequently than the 100 year storm.
Final Permit at 6. The sufficiency of this provision, which the parties refer to as the "inflow
study," and the permit's adequacy to control alleged inflow into the City's CSS from
floodwaters, are the focus of this appeal.
B. Procedural History Before the Board
On November 2,2009, Mr. Kaiser filed a timely petition seeking review of the permit
decision the Region issued allowing the City of Cambridge to discharge from its CSS. See
Petition for Review of EPA Permit Decision: NPDES Permit No. MA0101974 (for) the City of
Cambridge, Massachusetts ("Petition"). Shortly thereafter, the Permittee filed a motion
requesting leave to intervene as a party respondent in this appeal, which the Board granted by
Order dated December 9,2009. On December17, 2009, the Region moved for a 60-day stay of
the proceedings to allow the parties to work toward resolution of this matter through settlement
discussions, which the Board granted. Unfortunately, the parties were unable to make progress
towards a settlement agreement and the Board, upon request, lifted the stay and established a
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deadline for the filing of responses. Both the Region and the Permittee filed timely responses to
the Petition. See Region's Response; [City's] Response to Petition for Review ("City's
Response"). The case now stands ready for Board resolution.
IV. STANDARD OF REVIEW
In determining whether to grant review of a petition filed under 40 C.F.R. § 124.19(a), the
Board first considers whether the petitioner has met threshold procedural requirements such as, inter
alia, issue preservation. See 40 C.F.R. § 124.19; In re Circle T Feedlot, Inc., NPDES Appeal
Nos. 09-02 & 09-03, slip op. at4 (EAB June 7, 2010),14 E.A.D. 'Inre Beeland Group LLC, UIC
Appeal No. 08-02, slip op. at 8 (EAB Oct. 3,2008), 14 E.A.D. _; In re Indeck-Elwood, LLC,
13 E.A.D. 126, 143 (EAB 2006). For instance, a petitioner 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. 40 C.F.R. §§ 124.13, .19; see In re City ofMoscow, 10 E.A.D.
135,141 (EAB 2001); In re City ofPhoenix, 9 E.A.D. 515,524 (EAB 2000), appeal dismissed per
stip., No. 01-70263 (9th Cir. Mar. 21,2002). The Board has frequently rejected appeals where issues
that were reasonably ascertainable during the comment period were not raised at that time but instead
were presented for the first time on appeal. In re Scituate Wastewater Treatment Plant, 12 E.A.D.
708,717 (EAB 2006), appeal dismissedperstip., No. 06-1817 (1st Cir. Aug. 4, 2006); In reArecibo
& Aguadilla Reg 'I Wastewater Treatment Plants, 12 E.A.D. 97, 120-22 (EAB 2005); In re Wash.
Aqueduct Water Supply Sys., 11 E.A.D. 565, 590-91 (EAB 2004). Assuming that a petitioner
satisfies all threshold procedural obligations, the Board then evaluates the petition on its merits to
determine ifreview is warranted. Indeck Elwood, 13 E.A.D. at 143.
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Ordinarily, the Board will not grant review of an NPDES permit decision unless the permit
conditions at issue are based on clearly erroneous findings of fact or conclusions of law or involve
important policy considerations that the Board, in its discretion, should review. 40 C.F.R.
§ 124. 19(a); In re Gov't ofD.C. Mun. Separate Storm Sewer Sys., 10 E.A.D. 323,332-33 (EAB
2002) ("D.C. MS4");In re City ofIrving Mun. Separate StormSewerSys., 10 E.A.D. 111, 122 (EAB
2001), pet. for review denied, City of Abilene v. u.s. EPA, 325 F.3d 657 (5th Cir. 2003) (consolidated with City ofIrving v. u.s. EPA). The Board analyzes petitions for review guided by
the caution in the preamble to the Part 124 permitting regulations that the Board's power of review
"should be only sparingly exercised." Consolidated Permit Regulations, 45 Fed. Reg. 33,290, 33,412
(May 19, 1980). This reflects EPA's policy that favors final adjudication of most permits at the
permit issuer's level. Id. at 33,412.
A petitioner seeking review of a permit provision bears the burden of demonstrating that
review is warranted. 40 C.F.R. § 124.19(a)(l)-(2). In order to show clear error, 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 ofAshland 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). 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).
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Finally, a petitioner seeking review ofissues that are technical in nature bears a heavy burden
because the Board generally gives substantial deference to the permit issuer on questions oftechnical
judgment. Town ofAshland, 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. Us. EPA, 185 F.3d 862 (3d Cir. 1999).
For technical issues, the Board determines whether the record demonstrates that the permit issuer
considered the issues raised in the comments and whether the approach the permit issuer ultimately
adopted is rational in light of all of the information in the record. Dominion Energy, 12 E.A.D.
at 510; D.C MS4, 10 E.A.D. at 348; 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, the Board typically will defer to the permit issuer's position. NE
Hub, 7 E.A.D. at 568.
V. ANALYSIS
As noted in Part I supra, Petitioner questions the adequacy ofthe permit to protect the City's
CSS from inflow during flood events, arguing that the permit lacks certain elements. According to
Petitioner, the permit should: (1) prohibit the construction ofthe drainage project until "the analysis
and report on inflow and necessary mitigation has been completed,"9 Petition at 2-3; (2) require the
Permittee to include a "problem statement" with the April 30, 2010 annual report,lO id. at 3;
9As relief from this alleged deficiency, Mr. Kaiser requests that the permit be modified to
include the following language between permit conditions I.e.3 and LC.4: "the permit[t]ee shall take no action to increase flood levels in Alewife Brook, in particular to construct the drainage relief project heretofore known as Contract 12." Petition at 3, ~ 1.
10 As relief, Mr. Kaiser requests that section I.D.5 be modified so that the first annual
(continued ... )
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(3) provide a schedule for the installation of flap gates or similar flow restrictions to prevent inflow
from the Alewife Brook watershed into the City'S CSOs during wet conditions, id.; and (4) require
the Permittee to monitor, and report data from, the Cambridge monitoring gauges, id. at 4.
The Board begins its analysis by determining whether the arguments raised in the Petition
meet threshold procedural requirements. I I As noted earlier in this decision, a party seeking review
must demonstrate, among other things, that any issues and supporting arguments were preserved for
10(... continued)
report include an "initial statement of the inflow problem in terms of the potential for inflow from Alewife Brook under flood conditions." Petition at 4, ~ 4.
11 As noted earlier, the City is also participating in this appeal and opposes Mr. Kaiser's
Petition. The City's first opposing argument is that the matters on which Petitioner seeks Board review are outside ofthe Board's jurisdiction. See City's Response at 2-S. The City claims that the Petition does not challenge any of the conditions in the permit, that rather the Petitioner is contesting the absence of conditions. Id. at 2. The City adds that "[i]nstead of addressing any of the NPDES Permit conditions, the Petition is a misguided attempt to challenge the [drainage] Project, which is outside the scope ofthe NPDES Permit and therefore is outside the scope of the Board's jurisdiction." Id. at 3.
The Board disagrees with the City. The Petition alleges that the permit lacks certain
elements and claims that the drainage project will increase local flooding and inflow into the City'S CSS. The Board reads these arguments as a challenge to the adequcicy and sufficiency of Part I.D.S, and the permit in general. It is only to that extent that the Board will entertain Petitioner's arguments. As the Board has stated in the past, part 124 authorizes the Board to review any condition ofthe permit decision, 40 C.F.R. § 124.19(a), as well as the permit decision in its entirety. Circle T Feedlot, slip. op at S n.l, 14 E.A.D. _ (citations omitted). In addition, the Board entertains challenges that relate to a permit issuer's alleged failure to include permit conditions. See, e.g., In re Canoe a Phillips, Co., 13 E.A.B. 768, 800-80S (EAB 2008) (entertaining argument that permitting authority erred by not imposing permit limits to control greenhouse gas emissions); Indeek Elwood, 13 E.A.D. at 186 (discussing merits of petitioner's argument that the permit issuer failed to include an emission limit for flouride); In re Envtl. Disp. Sys., 12 E.A.D. 2S4, 26S-67 (entertaining series of challenges to the permit issuer's alleged failure to include various conditions in a permit). Accordingly, the Board rejects the City's argument that the issues raised in the Petition are outside Board jurisdiction.
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Board review. That is, that the issues or supporting arguments were raised during the public
comment period, unless the issues were not reasonably ascertainable and/or the arguments were not
reasonably available. See supra Part IV; 40 C.F.R. § 124.13.
,
A. Were the Arguments Petitioner Raises Preserved for Board Review?
The Board's examination of the record reveals that the first argument Petitioner raises was
not preserved for Board review. More specifically, Petitioner's argument that the permit should
prohibit the construction of the drainage project until "the analysis and report on inflow and
necessary mitigation has been completed" was not raised, but was known and could have been raised
during the public comment period. Therefore, does not meet threshold procedural requirements.
At no time did Petitioner request that the permit prohibit or delay construction ofthe drainage
project. Instead, Mr. Kaiser generally raised concerns about potential flooding problems associated
with the drainage project and the need for a mitigation plan. 12 See Comment Letter at 2-4. Even
though the inflow study was added to the permit after the public comment' period, a request to
include a permit condition prohibiting commencement of the drainage project until additional
information had been gathered could have been raised during the public comment period.13 As the
12 The City asserted, contrary to Mr. Kaiser's comments that the drainage project would
cause flooding problems, that the project would not exacerbate flood conditions in the watershed. See Region's Response at 8 (citing NPC Chapter 8).
13 Notably, the relief Mr. Kaiser requests to address this alleged deficiency is to add a new
permit condition between LC.3 and LCA. See Petition at 3, ~ 1. Both ofthose permit conditions were part of the draft permit, and Mr. Kaiser could have requested the same relief in his comment letter.
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Board has noted on numerous occasions, adherence to the requirements in 40 C.F.R. § 124.13 is
necessary to ensure that the Region has an opportunity to address potential problems with the draft
permit before the permit becomes final. In re New Eng. Plating, 9 E.A.D. 726, 732 (EAB 2001);
In re Sutter Power Plant, 8 E.A.D. 680, 687 (EAB 1999); In re Encogen Cogeneration Facility,
8 E.A.D. 244,249-250 (EAB 1999). Thus, to allow this argument to be raised at this late date would
undermine the Agency's longstanding policy that most permit issues should be resolved at the
Regional level, and to provide predictability and finality to the permitting process. E.g., In re Fla.
Pulp & Paper Ass 'n, 6 E.A.D. 49, 53 (EAB 1995); Sutter Power Plant, 8 E.A.D. at 687 ("The intent
of these rules is to ensure that the permitting authority * * * has the first opportunity to address any
obj ections to the permit, and that the permit process will have some finality."). Because Mr. Kaiser's
request, that the permit include a prohibition on proceeding with construction ofthe drainage project
until certain conditions are met, was not preserved for review, the Board denies review ofthe permit
on this basis. 14
14 Accordingly, the Board need not address the merits of the request, nor need it address
the other arguments Mr. Kaiser raises in connection with this request. See Petition at 2-3 (claiming that "EPA has incorrectly represented the flooding consequences of these drainage plans and their intimate connection with approved plans for combined sewer separation," and that "EPA has failed to recognize how these drainage modifications will result in increased local flooding and inflow into the sewer system.").
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B. Did the Petitioner ;Ueet His Burden to Show that the Region Clearly Erred or Abused its
Discretion in Not Including in the Permit the Provisions Petitioner Proposes?
Since the remaining arguments were raised below or relate to the provision the Region
modified after the public comment period, the Board proceeds to determine whether Petitioner has
met his burden ofshowing that the Region clearly erred or abused its discretion by failing to include:
(1) a problem statement; (2) a schedule for the installation of flap gates or other flow restrictions;
and (3) a requirement to monitor and report data from the "Cambridge monitoring gauges."
1. Problem Statement
The next element allegedly missing from the permit is a requirement to include a problem
statement in the first annual report required by Part LDY Petitioner argues that the permit
requirement for the inflow study should have specified an "inflow problem statementl6 * * * as a
preliminary to the [inflow] study report the next year." Petition at 3, ~ 2. According to Petitioner,
"[t]he absence of such a problem statement could undermine the goal 'of EPA for a meaningful and
useful study and report by the [P]ermittee on the subject matter of stream inflow." Id. Petitioner
adds that "[a] clear and accurate problem statement is one of the major components in a useful and
accurate inflow study to avoid any increase in such inflow and to assure compliance with
15 Part LD requires the Permittee to submit a report every year. The first annual report
was due April 30, 2010. See Permit at 5-6. The assessments required under the inflow study, Part LD.5, must be submitted with the second annual report, due on April 11, 2011.
16 Mr. Kaiser does not elaborate on what an "inflow problem statement" should entaiL
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NM[C] 17#4." ld. In essence, Petitioner implies that the lack of a problem statement compromises
the integrity and value ofthe inflow study. 18
The Region argues that the permit's requirement for an inflow study contains sufficient
parameters to promote the development ofuseful and accurate information about stream inflow from
Alewife Brook. Region's Response at 17. The Region requests that the Board deny review of this
issue because Mr. Kaiser has failed to demonstrate why the absence of such a provision in the permit
constitutes clear error. ld.
The Board agrees with the Region. Petitioner's arguments fall far short of showing clear
error. As explained earlier in this decision, a petitioner seeking review of technical issues, like the
issue here, bears a heavy burden. In order to show clear error a petitioner must do more than simply
present a different opinion or alternative theory regarding a technical matter. Scituate, 12 E.A.D.
17 In his Petition Mr. Kaiser refers to NMH#4, which the Board assumes is a
typographical error.
18 Petitioner's main focus in the Petition seems to be the inclusion of a problem statement
with the first annual report, which Petitioner also refers to as the "initial statement." See Petition at 3, ~. 2 (Claims for Review ofCertain Sections ofthe Permit). In addition to the alleged failure to include a problem statement, the Petition also seems to request that a second item be included in Part LD.5 of the permit. Specifically, in the section entitled Petition for Reliefwith Respect to Permit No. MAOI01974, see Petition at 3-4, Petitioner requests that a "progress report" be included in the third annual report. Petition at 3-4, ~ S ("Insert at the end of Section D.S. 'The Third Annual Report (due Apri130, 2012) shall include a progress report on evaluations ofthe initial study and any plans for action to seek compliance with NMC#4. "'). Other than this reference to a "progress report" the Petition makes no other reference to this request. To the extent that Mr. Kaiser intended to raise this point as a separate issue on appeal, the Board denies review on the same basis it denies review of the request that a problem statement be included in Part LD.5.
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at 718 ("Clear error or reviewable exercise of discretion are not established simply because the
petitioner presents a different opinion or alternative theory regarding a technical matter, particularly
when the alternative theory is unsubstantiated.") (citations omitted); see also DC MS4, 10 E.A.D.
at 334; NE Hub Partners, 7 E.A.D. at 567-68. A petitioner must substantiate its opinion or
alternative theory with relevant and credible evidence, and demonstrate that the Region's decision
is clearly erroneous. See e.g., In re City ofAttleboro, NPDES Appeal No. 08-08, slip op. at 32 (EAB
Sept. 15,2009), 14 E.A.D. ("[A] petitioner must support its allegations with solid evidence that
demonstrates how the permit issuer clearly erred in its decision making.").
Other than merely expressing his desire that the permit include a problem or initial statement,
and a "progress report,"19 Petitioner has not substantiated his arguments. For instance, Petitioner has
not explained what would be included in a problem statement,or, more importantly, why the inflow
study as currently designed is deficient without a problem statement. Conclusory assertions such as
Petitioner's argument that the absence of a problem statement could undermine EPA's goal for a
meaningful and useful study do not come close to meeting the requisite burden of proof.
Unlike Petitioner, who did not present a reasoned basis for his requested problem statement,
the Region does explain why a problem statement is not necessary in this case. See Region's
Response at 17-19, The Region points out that the permit already requires a full evaluation of any
inflow problems, as well as potential solutions to any such problems. Id. at 18. Indeed, the permit
requires that the Permittee first determine whether a problem exists (i.e., assessment ofpotential for
19 See supra note 18.
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inflow from Alewife Brook to the CSS through existing structures over a range of flood conditions),
and if the study reveals that such is the case, the permit then requires the Permittee to assess the
installation of inflow controls (i.e., assessment of cost, feasibility and effectiveness of installing
inflow controls). See Permit at 6. The Region adds that "the [P]ermittee must document and
transmit to the Region the results from these assessments," and that the information from the
assessments "would likely contain information resembling an inflow problem statement, if
applicable, in addition to any necessary proposed solutions." Region's Response at 18. In fact, the
permit requires the Permittee to include in the April 30, 2011 report (the second report) the
assessments specified in Part LD.S.
Ifthe provision requiring an inflow study suffers from any shortcomings, they have not been
adequately identified or substantiated in the Petition. Petitioner has not shown that either a problem
statement or a progress report is necessary to ensure a successful inflow study. Absent such a
showing, the Board is in no position to second-guess the Region's judgment. Because Petitioner has
not shown clear error or an abuse of discretion, the Board declines to review the permit on these
grounds.
2. Schedule for the Installation ofFlap Gates or Other Flow Restrictions
The next element allegedly missing from the permit is a schedule for the installation of flap
gates or inflow controls. See Petition at 3, ~ 3. According to Mr. Kaiser, the permit "should have
specified a schedule for flap gates or similar flow restrictions to allow for single-directional overflow
only from CSOs and to prevent the reverse directional inflow ofAlewife Brook floodwaters into the
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CSO and MWRA interceptor system." ld. Mr. Kaiser adds that "[s]uch a requirement would be
conditional upon the results of the inflow study in Section D.S." ld..
Mr. Kaiser raised similar concerns in his comment letter where he argued that "the failure
to install flap gates on all remaining CSO pipes in Cambridge will result in no reduction in the brook
flood inflow through CSO structures into MWRA interceptor sewers" and that "[s]uch flap gates are
needed." Comment Letter at 4. In response to Mr. Kaiser's concerns about the potential inflow
problems and lack offlap gates, the Region modified the pennit to require the inflow study, which,
as previously noted, requires the City to assess the potential for river inflow into the City's CSS from
the Alewife Brook watershed and to assess the cost, feasibility, and effectiveness ofinstalling inflow
controls on the remaining CSO facilities. See Permit at 6 (Part I.D.5); RTC at 10-11 (Response to
Comment C3). In its response to comments, the Region explained that the information from the
inflow study "could establish a solid basis for requiring inflow controls in the future." RTC at 11.
On appeal, Mr. Kaiser slightly refined his comment that flap gates are needed, requesting that
the pennit now include a schedule for the installation of flap gates or other inflow controls
"conditional upon the results of the inflow study." Petition at 3, ~ 3. Essentially, he requests that
the permit include a schedule for the installation·of inflow controls ifthe inflow study shows a need
for such controls.
The Region opposes this request. In its view, the incorporation of such a schedule is
premature, since at this point the scope of any inflow problems, or even if there are any such
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problems, is unknown. See Region's Response at 19-20. The Region adds that" [iJfthe inflow
study reveals the need for and feasibility ofinstalling inflow controls on the City's CSO outfalls, the
Region could modifY the permit to include these requirements." ld. at 19.
The Board is not persuaded that the Region clearly erred by not incorporating the provision
Mr. Kaiser proposes. First, the Board finds that the Region adequately addressed the concerns
Mr. Kaiser raised during the public comment period, and finds no clear error in the approach the
Region adopted in response to those concerns. Specifically, the Region adopted a phased approach
of first determining whether an inflow problem exists, and if so, evaluating how to control such
problem in a feasible and cost effective manner. On appeal Mr. Kaiser does not explain why the
approach the Region adopted in response to his comments is clearly erroneous. Rather, although
slightly refined (i.e., that the permit include a schedule for the installation of inflow controls, if the
inflow study shows they are needed), the appeal continues to echo Mr. Kaiser's desire that the permit
incorporate a requirement for the installation of inflow controls. However, neither his comments
below nor his appeal shows that such controls are necessary now.
Second, the appeal does not show that the schedules now requested are either required by law
or even necessary. Mr. Kaiser does not identifY any authority, and the Board is unaware of any, that
mandates the permitting authority to include a permit requirement similar to the one Petitioner
proposes. In that sense the incorporation ofa schedule for the installation offlap gates or other flow
restrictions falls within the realm ofAgency discretion. See e.g., City ofAttleboro, slip op. at 40-41,
14 E.A.D. (reviewing permitting authority'S decision for abuse of discretion after concluding
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that pennit issuer had no legal obligation to modify certain pennit limitations in the manner
pennittee suggested). In addition, this matter is technical in nature. As previously noted, the Board
generally gives substantial deference to the permit issuer on questions oftechnical judgment. Town
ofAshland, 9 E.A.D. at 667; NE Hub Partners, 7 E.A.D. at 567-68. Absent a showing that the
pennit issuer had an obligation to include the requested provision, or that the provision is necessary,
the Board hasno basis to second-guess the Region's technical determination. Because Petitioner has
not shown clear error or an abuse of discretion, the Board declines to review the pennit on these
grounds.
(3) Monitoring and Reportingfrom the "Cambridge lvfonitoring Gauges"
The last element Petitioner alleges the permit lacks is monitoring and data collection from
the "Cambridge monitoring gauges." On appeal, Mr. Kaiser asserts that the pennit should "have
recognized the Cambridge monitoring gauges" and "should require that data from these gauges be
summarized in the Annual Reports [i.e., Part LD] to include wet weather conditions and especially
major floods." Petition at 3, ~ 4.
In his comments below, Mr. Kaiser made similar arguments claiming that "[p]roper
monitoring should include infonnation both on flooding/rainfall and CSO activity (both discharge
and inflow)," and that "Cambridge must calibrate and report regularly on data from [its] two existing
stream monitors." Comment Letter at 5. In response to these comments, the Region explained that
it was not aware that the City of Cambridge operated and maintained "stream monitors," and
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clarified who operates and maintains stream gauges in the watershed. 20 RTC at 11 (Response to
Comment C6). The Region argued that the permit monitoring requirements "contain sufficient detail
to determine compliance with the permit and progress on implementing CSO controls" and that
additional monitoring can be required in the future if additional data are needed. Id. The Region
also noted that the permit requires the City to quantify the frequency and volume of all CSO events,
as well as to provide information on precipitation events. Id.
The Board finds no clear error in the Region's response to comments. Indeed, permit
condition LD. requires the Permittee to submit a report every year that includes, among other things,
activation frequencies and discharge volumes for each CSO, and precipitation information, including
total rainfall, peak intensity, and average intensity. Permit at 5 (LD .1-.2). Mr. Kaiser's Petition does
not substantively address the Region's response to comments. As stated earlier in this decision, a
petitioner may not simply reiterate comments made during the public comment period, a person
seeking review must substantively confront the permit issuer's response to comments. Peabody,
12 E.A.D. at 33. While on appeal Mr. Kaiser claims that the data from the "Cambridge monitoring
gauges" are an "essential element in understanding the nature of CSO from Alewife Brook and in
rendering a preliminary calculation of the duration and volume of such inflow during a specified
storm condition," Petition at 3, he does not explain what additional information data from these
gauges will provide, why such data are necessary, or why the current permit monitoring conditions
20 RTC at 11-12 (Response to Comment C6) ("The Agencies are not aware that
Cambridge operates and maintains any 'stream monitors.' USGS continues to operate and maintain a stream gauge on Alewife Brook near Arlington, data from which is available in real time on line. The Mystic River Watershed Association appears to operate a seasonal instream monitor on Alewife Brook.").
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and the Region's explanation in its response to comments fail to address his concerns. In sum,
Petitioner does not explain why the response to comments is clearly erroneous or an abuse of
discretion. In light of these flaws, the Board declines review of the permit on this basis.
VI. CONCLUSIONS OF LAW
Based on the foregoing discussion, the Board concludes that Petitioner failed to meet his
burden of showing that:
1. His request that the permit include a provision prohibiting the construction ofthe drainage
project until certain conditions are met was preserved for Board review; and
2. The Region clearly erred or abused its discretion by not including in the Permit the
provisions he identifies in his appeal.
VII. ORDER
The Board denies review of the permit on the grounds Petitioner proposed.
So ordered. 21
ENVIRONMENTAL APPEALS BOARD
olgast
Environmental Appeals Judge
21 The three-member panel deciding this matter is comprised of Environmental Appeals
Judges Edward E. Reich, Charles J. Sheehan, and Anna L. Wolgast.
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CERTIFICATE OF SE~VICE
I hereby certify that copies of the foregoing Order Denying Review in the matter of City
of Cambridge, NPDES Appeal No. 09-17, were sent to the following persons in the manner indicated:
By EPA Pouch Mail and FAX:
Amanda J. Helwig
Office of Regional Counsel
U.S. EPA, Region 1
5 Post Office Square, Suite 100
Mail Code: ORA 18-1
Boston, MA 02109-3912
Fax: 617-918-0180
By First C1ass Mail Postage Prepaid and FAX:
Stephen D. Anderson
Elizabeth F. Mason
Anderson & Kreiger LLP
1 Canal Park, Suite 200
Cambridge MA, 02141
Fax: 617-621-6501
By First Class Mail Postage Prepaid:
Stephen H. Kaiser
191 Hamilton St.
Cambridge, MA 02139
Dated: AUG 3 0 2010
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