Upper Blackstone Water Pollution Abatement District (Board decision, March 30, 2011)

Plain-English summary

The Upper Blackstone Water Pollution Abatement District operates a wastewater treatment plant in Millbury, Massachusetts, under an NPDES permit issued by EPA Region 1. After the EAB remanded provisions that had identified nearby municipalities and a sewer district as co-permittees, the Region removed those requirements and issued a revised final permit. The District, the City of Worcester, the Town of Millbury, and the Town of West Boylston petitioned for review. The Board dismissed Millbury's and West Boylston's petitions for lack of standing, denied the District's and Worcester's challenges because the permit imposed requirements only on the District, and held that the Region properly declined to reopen public comment on remand. The order left the revised permit in effect.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.14, 124.19, 124.16, 124.17, 124.18, 124.15, 122.41, 122.4, and 122.62.
• Outcome: Review was denied in all respects, and the revised NPDES permit remained in effect.
• Key point: On remand, the Region could remove the co-permittee provisions and issue the revised permit without reopening public comment because the Board's remand returned those provisions to the pre-final-decision process governed by 40 C.F.R. § 124.14.

Full text (EPA EAB public release)

    UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT                               297

IN RE UPPER BLACKSTONE WATER POLLUTION
ABATEMENT DISTRICT
NPDES Appeal Nos. 10-09, 10-10, 10-11, and 10-12

                       ORDER DENYING REVIEW



                           Decided March 30, 2011



                                      Syllabus

   The Upper Blackstone Water Pollution Abatement District (“District”) owns and op-

erates a wastewater treatment plant located in Millbury, Massachusetts (the “Treatment Plant”), which collects and treats sewage and wastewater from the surrounding area includ- ing from collection systems owned by nearby municipalities and a sewer district. On Au- gust 22, 2008, U.S. Environmental Protection Agency Region 1 (“Region”) issued to the District a National Pollution Discharge Elimination System (“NPDES”) permit (“2008 per- mit decision”). On May 28, 2010, the Board issued its decision remanding the provisions of the 2008 permit decision that would have identified as co-permittees and imposed condi- tions on certain municipalities and the sewer district, which owned or operated sewage collection systems that discharge solely into the District’s Treatment Plant. See In re Upper Blackstone Water Pollution Abatement Dist., 14 E.A.D. 577, 585-91 (EAB 2010). On re- mand, the Region decided to “forego imposition of any co-permittee requirements” and issued its final permit decision (“Permit”) on July 7, 2010, redacting all references in the Permit to co-permittees and making certain other conforming changes.

    Before the Board at this time are petitions seeking review of the Permit. The peti-

tions generally allege that the Region did not fully remove from the Permit the co-permittee requirements previously imposed on the municipalities and sewer district. The petitions were filed by: (1) the District; (2) the City of Worcester, Massachusetts (“Worces- ter”); (3) the Town of Millbury, Massachusetts (“Millbury”); and (4) the Town of West Boylston (“West Boylston”).

  Held:

  1. Millbury and West Boylston do not have standing to file petitions arguing that the

Region did not completely remove from the Permit the municipalities as co-permittees. Neither Millbury, nor West Boylston, demonstrate that they participated in the public com- ment period and they have failed to show that their petitions seek review of Permit terms that were changed between the draft and final Permit.

   2. The Board concludes that the District and Worcester have failed to demonstrate

that the Region’s final permitting decision is based on a clear error of fact or law or that there is an important policy decision the Board should review. The Permit does not include the municipalities and sewer district as co-permittees subject to the Permit’s requirements. The Permit now imposes requirements only on the District.

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   3. The Region followed the proper procedure when the Region decided to issue the

July 7, 2010 final permit decision without opening public comment on the changes it made to the Permit on remand. The Region properly applied 40 C.F.R. § 124.14 in determining whether to reopen public comment. Further, the procedures for modifying an existing per- mit set forth at 40 C.F.R. § 122.62 are not applicable to the remand proceedings.

 Before Environmental Appeals Judges Charles J. Sheehan, Kathie

A. Stein, and Anna L. Wolgast.

  Opinion of the Board by Judge Wolgast:


                              I. INTRODUCTION

  The Upper Blackstone Water Pollution Abatement District (“District”) owns

and operates a wastewater treatment plant located in Millbury, Massachusetts (“Treatment Plant”), which collects and treats sewage and wastewater from the surrounding area including from collection systems owned by nearby municipali- ties and a sewer disrict. On August 22, 2008, U.S. Environmental Protection Agency Region 1 (“Region”) issued to the District a National Pollution Discharge Elimination System (“NPDES”) permit, number MA 0102369 (“2008 permitting decision”).

  Several parties filed petitions requesting that the Environmental Appeals

Board (“Board”) review the Region’s 2008 permitting decision, and on May 28, 2010, the Board issued its decision denying review in all respects except one. Among other things, the Region’s 2008 permitting decision would have identified as “co-permittees” and extended standard permit conditions governing operation, maintenance, and reporting to certain sewage collection systems separately owned and operated by some of the specific municipalities that discharge solely into the District’s Treatment Plant. The Board remanded the provisions imposing permit conditions on the identified co-permittees. See In re Upper Blackstone Water Pol- lution Abatement Dist., 14 E.A.D. 577, 585-91 (EAB 2010) [hereinafter “Upper Blackstone I”]. The Board stated that “[o]n remand, the Region may re-issue the Permit with, or without, the co-permittee provision as the Region determines is appropriate.” Id. at 591. The Board also stated that if the Region decides to issue the permit with the co-permittee provision, the Region must correct its previous failure to “sufficiently articulate[] in the record of this proceeding a 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.” Id. at 589-90.

  On remand, the Region decided to “forego imposition of any co-permittee

requirements” and issued its final permit decision on July 7, 2010, redacting all references in the Permit to co-permittees and making certain other conforming

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changes. Determination on Remand at 2-3 (July 7, 2010).1 (The 2008 permitting decision, as changed by the Determination on Remand and by a modification2 the Region issued prior to the Board’s 2010 remand order, is referred to herein as the “Permit.”)

   Before the Board at this time are petitions seeking review of the Permit. The

petitions for review generally allege that the Region did not fully remove from the Permit the co-permittee requirements previously imposed on the municipalities and sewer district. The petitions were filed by: (1) the District; (2) the City of Worcester, Massachusetts (“Worcester”); (3) the Town of Millbury, Massachusetts (“Millbury”); and (4) the Town of West Boylston (“West Boylston”).

 For the reasons discussed below, the Board denies review of the final

Permit.

                                 II. ISSUES ON APPEAL

   The petitions raise the following issues:

   1. Do Millbury and West Boylston have standing to file petitions arguing

that the Region did not completely remove from the Permit the municipalities as co-permittees?

  2. Does the Permit, as changed by the Determination on Remand, improp-

erly impose any requirements on the municipalities and sewer district previously identified as co-permittees?

  3. Did the Region follow the proper procedure when the Region decided to

issue the July 7, 2010 final permit decision without opening public comment on the changes it made to the Permit on remand?

   1 As part of the Region’s Determination on Remand the Region issued a Notice of Changes

Conforming to the Board’s Order on Remand, which identifies the specific words added to and deleted from the Permit.
2 When initially issued in 2008, the Permit did not include a limit for total aluminum. On

April 15, 2009, the Region issued a Permit modification setting 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 Permit, NPDES Appeal No. 08-11 (May 20, 2009) [hereinafter “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 2008 permitting decision, and the Board’s Upper Blackstone I decision denied review of the aluminum limit.

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                            III. SUMMARY OF DECISION

  As explained below, the Board concludes that Millbury and West Boylston

do not have standing to file petitions for review of the Region’s final permit deci- sion. Neither Millbury nor West Boylston demonstrate that they participated in the public comment period, and they have failed to show that their petitions seek review of Permit terms that were changed between the draft and final Permit. However, even if they had satisfied the prerequisites for review, since their peti- tions are nearly identical to the petition filed by Worcester, the Board would deny review for the same reasons the Board denies review of Worcester’s petition.

 The Board concludes, for the reasons stated below, that the District and

Worcester have failed to demonstrate that the Region’s final permit decision is based on a clear error of fact or law or that there is an important policy decision the Board should review. The Permit no longer includes the municipalities and sewer district as co-permittees subject to the Permit’s requirements. The Permit now imposes requirements only on the District.

  The Region also followed the proper procedure on remand in deciding to

issue the July 7, 2010 final permit decision without soliciting public comment on the changes it made to the Permit. The Region properly applied 40 C.F.R.
§ 124.14 in determining whether to reopen public comment. Further, the proce- dures for modifying an existing permit set forth at 40 C.F.R. § 122.62 are not applicable to the remand proceedings.

                                IV. RELEVANT HISTORY

  The District was authorized to discharge pollutants to the Blackstone River

pursuant to an NPDES permit the Region issued on September 30, 1999, and modified on December 19, 2001 (“2001 modified permit”). This case arises out of the District’s application for an NPDES permit to authorize discharges upon the expiration of the 2001 modified permit.3 The Board’s decision in Upper Black- stone I describes the factual and procedural history leading to the Board’s decision to deny review in part and remand the one issue regarding the co-permittee provi- sions.4See 14 E.A.D. at 580-83. The Board now considers and, as explained be-

    3 Although the term of the 2001 modified permit has expired, the District was initially author-

ized to continue discharging pursuant to that expired permit because the District timely filed an appli- cation for permit renewal. 40 C.F.R. § 122.6. As described below, after January 1, 2009, the District’s discharges became subject to the undisputed and severable conditions of the Region’s 2008 permitting decision as identified in the Region’s November 2008 notice. See footnote 12 below.
4 The following organizations filed petitions requesting Board review of the Region’s 2008

permitting decision: (1) the District; (2) the Town of Holden, Massachusetts (“Holden”); (3) Millbury;
Continued

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low, denies the petitions for review of the Region’s decision on remand, which petitions were filed by the District, Worcester, Millbury, and West Boylston.

                             V. STANDARD OF REVIEW

  In proceedings such as this one under 40 C.F.R. § 124.19(a), only persons

“who filed comments on th[e] draft permit or participated in the public hearing may petition the Environmental Appeals Board to review any condition of the permit decision,” except that “[a]ny person who failed to file comments or failed to participate in the public hearing on the draft permit may petition for administra- tive review only to the extent of the changes from the draft to the final permit decision.” 40 C.F.R. § 124.19(a).

  The burden of persuading the Board that it should review a permit decision

rests with the petitioner, who must demonstrate that a permit condition is based on a clearly erroneous finding of fact or conclusion of law, or involves an exercise of discretion or an important policy consideration that the Board determines warrants review. Id.; accord In re Hecla Mining Co., 13 E.A.D. 216, 223 (EAB 2006); In re City of Marlborough, 12 E.A.D. 235, 239-40 (EAB 2005), appeal dismissed for lack of jurisdiction, No. 05-2022 (1st Cir. 2005); In re Gov’t of D.C. Mun. Sepa- rate Storm Sewer Sys., 10 E.A.D. 323, 332-33 (EAB 2002); In re City of Irving, Tex., Mun. Separate Storm Sewer Sys., 10 E.A.D. 111, 122 (EAB 2001), review denied sub nom. City of Abilene v. EPA, 325 F.3d 657 (5th Cir. 2003). The Board is guided by the concept articulated in the preamble to the part 124 permitting regulations, which states that the Board’s power of review “should be only spar- ingly exercised” and that “most permit conditions should be finally determined at the [r]egional level.” Consolidated Permit Regulations, 45 Fed. Reg. 33,290, 33,412 (May 19, 1980); accord In re Teck Cominco Alaska, Inc., 11 E.A.D. 457, 472 (EAB 2004).

  Ordinarily, the scope of appeal is limited: the petitioner must demonstrate

that any issues and arguments it raises on appeal were preserved for Board review by having been raised during the public comment period, unless the issues or ar-

(continued)
(4) Worcester; (5) the Northern RI Chapter 737 Trout Unlimited (“Trout Unlimited”); (6) the Conser- vation 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 requested, and the Board granted, permission to par- ticipate in that proceeding as Amicus Curiae. In response to Trout Unlimited’s petition, the Region issued on April 15, 2009, its revised decision establishing the Permit’s conditions for total aluminum discharge and monitoring. The District filed a second petition requesting that the Board review the new 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, and decided all issues in Upper Blackstone I.

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guments were not reasonably ascertainable before the close of public comment. 40 C.F.R. §§ 124.13, .19(a).5 Where the decision at issue is a final decision issued after remand, as is the case here, the scope of the appeal is further limited to the remanded permit condition(s) and to any changes to the permit required by inter- vening changes in the law governing the permit. See In re Dominion Energy Bray- ton Point, LLC, 13 E.A.D. 407, 439 (EAB 2007), appeal rendered moot by settle- ment, No. 07-2059 (4th Cir. Dec. 17, 2007); In re Knauf Fiber Glass, GmbH, 9 E.A.D. 1, 7 (EAB 2000) (“All other issues pertaining to this PSD permit should have been raised at the time of the first appeal. Issues raised outside of the appeals period on the original permit are considered untimely.”). This limitation is consis- tent with the Board’s cases denying consideration of issues not raised in the initial petition for review, but instead raised in later briefs. See In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 595 (EAB 2006) (denying review of an issue first raised in response briefs); In re Steel Dynamics, Inc., 9 E.A.D. 165, 219 n.62 (EAB 2000) (same as to issue first raised in rebuttal brief); In re Knauf Fiber Glass, GmbH, 8 E.A.D. 121, 126 n.9 (EAB 1999) (“New issues raised at the reply stage of the[] proceedings are equivalent to late filed appeals and must be denied on the basis of timeliness.”); In re City of Ames, 6 E.A.D. 374, 388 n.22 (EAB 1996) (denying petitioner’s request to file a supplementary brief after the appeal period had expired because it raised a related but “distinct” new issue).

                                        VI. ANALYSIS

A. Millbury and West Boylston Do Not Have Standing to File Their Petitions Arguing that the Region Did Not Completely Remove from the Permit the Municipalities as Co-Permittees

   In the Board’s remand decision, Upper Blackstone I, the Board held that

Millbury did not have standing to file a petition for review because Millbury failed to demonstrate that it submitted comments on the draft permit or otherwise participated in the public comment process. 14 E.A.D. at 583-84. Millbury again in its present petition fails to demonstrate that it submitted comments on the draft permit or participated in the public comment process. West Boylston neither filed a petition in the prior appeal proceeding, nor demonstrates in its petition here that it submitted comments on the 2007 draft permit or participated in the public com- ment process in 2007. Accordingly, Millbury and West Boylston have standing to seek Board review “only to the extent of the changes from the draft to the final permit decision.” 40 C.F.R. § 124.19(a).

   5 In other words, the regulations require that persons who seek review of a permit decision, or

another person submitting comments on the draft permit, “must raise all reasonably ascertainable issues and submit all reasonably available arguments supporting their position by the close of the public comment period.” 40 C.F.R. § 124.13 (emphases added).

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   The “extent of the changes” in the present case is defined by the Region’s

decision to “forego imposition of any co-permittee requirements” and to issue the final permit on July 7, 2010, without the municipalities as co-permittees. Determi- nation on Remand at 2-3 (July 7, 2010). Millbury and West Boylston do not ob- ject to the changes actually made by the Region, but instead they argue that the Region did not go far enough. Specifically, both Millbury and West Boylston state that they “support” the Region’s decision to forego imposition of the co-permittee requirements, but they contend that “the Region’s changes are insuf- ficient to remove the effect of these provisions.” West Boylston Pet. at 1; Millbury Pet. at 1. West Boylston and Millbury now challenge Permit language listing them as authorized to discharge to the District’s Treatment Plant and Permit language prohibiting the District from accepting wastewater from entities not listed in the Permit. West Boylston Pet. at 1-2; Millbury Pet. at 1-2. West Boylston and Mill- bury also object to Permit language requiring the District to control inflow and infiltration in its collection system and requiring the District to enter into agree- ments providing for control of inflow and infiltration in collection systems that discharge to the District’s Treatment Plant. West Boylston Pet. at 2-3; Millbury Pet. at 2-3. These provisions were not added to the Permit after public comment. In other words, both Millbury and West Boylston argue for additional changes going beyond the “extent of the changes” the Region has already made to the Per- mit on remand. However, Section 124.19(a) grants standing for persons who failed to submit comments and failed to participate in the public hearing to peti- tion for review “only to the extent of the changes from the draft to the final permit decision;” it does not grant standing to request additional changes that go beyond the changes made. 40 C.F.R. § 124.19(a) (emphasis added). Accordingly, Mill- bury and West Boylston do not have standing to argue that the Region did not go far enough in making changes from the draft to the final permit.

  In Upper Blackstone I, the Board accepted Millbury’s brief as an amicus

curiae. The Board explained that it would allow Millbury to participate as an ami- cus because a permittee has an interest in proceedings where the petitioning par- ties seek changes to the permittee’s permit. Upper Blackstone I, 14 E.A.D. at 583-84. In the present proceeding, however, the Region removed the Permit conditions imposing co-permittee requirements on Millbury and West Boylston. Determination on Remand at 2-3. As explained below in Part VI.B, these changes were sufficient to remove Millbury and West Boylston as co-permittees under the Permit. Accordingly, Millbury and West Boylston no longer have the interest of a permittee, and the Board will not consider their petitions as amicus briefs in this appeal. Instead, Millbury and West Boylston’s petitions are hereby dismissed for lack of standing. Further, since Millbury’s and West Boylston’s petitions are nearly identical to the petition filed by Worcester, even if Millbury and West Boylston would have had standing, the Board would deny review for the same reasons the Board denies review of Worcester’s petition as discussed in the next part.

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B. The Changes the Region Made to the Permit Were Sufficient to Remove the Municipalities from the Permit as Co-Permittees Subject to the Permit’s Requirements

  The District and Worcester originally objected to the Region’s decision to

impose co-permittee obligations on the municipalities and sewer district as part of the Region’s 2008 permitting decision. The Region’s 2008 permitting decision sought to extend standard permit conditions governing operation, maintenance, and reporting to sewage collection systems not owned or operated by the District, but instead owned and operated by the listed municipalities and Cherry Valley Sewer District. Upper Blackstone I, 14 E.A.D. at 585. The Region added the co-permittees to the Permit to control inflow and infiltration6 in sewage collection systems transporting wastewater to the District’s Treatment Plant. Id. at 585-86.

   The Board remanded the co-permittee provisions to the Region after con-

cluding that the Region had not adequately explained the legal basis for its deci- sion. Id. at 585-91. On remand, the Region decided to “forego imposition of any co-permittee requirements” and issued its final permit decision on July 7, 2010, redacting all references in the Permit to co-permittees and making certain other conforming changes. Determination on Remand at 2-3. Now, although the District states that it supports the Region’s decision to remove the co-permittee require- ments from the Permit,7 the District nevertheless requests that the Board review the Region’s Determination on Remand because the District contends the Permit leaves “intact” the “effect” of the removed co-permittee conditions and the Permit “maintains the functional equivalent to the prior co-permittee requirements.” Peti- tion for Review of Region 1’s Determination on Remand and Permit Modification Entitled “Notice of Changes Conforming to the Board’s Order on Remand and the Region’s Determination on Remand” at 4 [hereinafter “Dist. Pet.”]. Worcester makes similar arguments. Worcester’s Petition at 1-4 [hereinafter “Worcester Pet.”].

    6 “‘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.’” Upper Blackstone I, 14 E.A.D. at 586 n.10 (quoting Fact Sheet at 19). “‘Significant I/I in a collection 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.
7 The Region explains that its reason to forego imposing co-permittee requirements on remand

was principally based on the Region’s assessment of the greater need to avoid delay in implementing the Permit’s other conditions limiting nitrogen and phosphorous discharges due to the extent of nutri- ent impairment in the receiving waters and the significance of the District’s discharge contribution to the problem. See Determination on Remand at 2-3.

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   At bottom, the District and Worcester contend the Region failed to fully

comply with the Board’s decision in Upper Blackstone I by allegedly failing to completely remove the co-permittee requirements or to explain the legal basis for the Permit imposing requirements on entities other than the District. The District and Worcester argue that Permit changes were incomplete in two areas. First, they argue that the revisions made to the Permit’s first page are incomplete. Although the Region deleted language on the Permit’s first page identifying certain munici- palities and the sewer district as co-permittees, the District and Worcester argue that the Permit continues to assert jurisdiction over the municipalities and sewer district by language the Region did not change, which describes the listed munici- palities and sewer district as “authorized to discharge wastewater” to the District’s Treatment Plant. Dist. Pet. at 5-7 (quoting Permit at 1); see also Worcester Pet. at 1-2 (same). Second, the District and Worcester argue that Permit Part E either continues to impose requirements on the municipalities and sewer district or re- tains the effect of the former co-permittee requirements by requiring the District both to control inflow and infiltration in its collection system and to enter into agreements with other entities for control of inflow and infiltration in collection systems that discharge to the District’s Treatment Plant. Dist. Pet. at 8-12; Worcester Pet. at 2-3.

  The District’s and Worcester’s arguments must be rejected. By its July 7,

2010 decision, the Region removed from the Permit all language that previously identified the municipalities and the sewer district as “co-permittees” and all lan- guage that previously imposed requirements on those co-permittees. See Determi- nation on Remand, Ex. B. Specifically, the Region removed the statement in the Permit’s first paragraph identifying Worcester, Millbury, and West Boylston, among others, as “co-permittees for Part D and Part E [that] are responsible for implementation of the operation and maintenance and reporting requirements of Parts D and E related to their respective system.” Determination on Remand, Ex. B at 5 (identifying deleted language). The Region also removed, from Parts D and E, references to “co-permittees,” and in Part E, the Region added language stating that the specific requirements apply to the District, as the remaining per- mittee, “only to the extent the permittee owns the separate sewer system.” Id., Ex. B at 2-4, 6-8. No reference to “co-permittees” remains in the Permit after the Region made these changes. Thus, the Permit’s current language only imposes requirements on the District as the sole remaining permittee; the Permit’s plain meaning does not impose any requirements on the entities that discharge to the District’s Treatment Plant.

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   The Board rejects the District’s and Worcester’s contention that Permit lan-

guage on the first page identifying specific municipalities as “authorized”8 to dis- charge to the District’s facility constitutes an attempt by the Region to exert juris- diction over the listed entities by granting discharge authority to them. Dist. Pet. at 6 (“By stating that these specific municipalities and sewer district have exclu- sive authority from Region 1 to discharge to the District, the Region asserts juris- diction over them * * * .”); Worcester’s Pet. at 1-2. Contrary to the District’s and Worcester’s argument, the Permit does not purport to grant discharge authority to the listed entities (or to enlarge those entities’ discharge authority), but instead the Permit merely lists the entities from whom the District currently accepts waste- water flow for treatment. Not only is this the most natural meaning of the Permit’s words, but it also is the Region’s interpretation, see Region’s Opposition at 9, and, therefore, this meaning is binding on the Region. In re Austin Power Co., 6 E.A.D. 713, 717 (EAB 1997) (permit issuer’s interpretation of disputed permit terms is authoritative and binding on the agency). This meaning is also apparent from the provision’s history as it was developed through the permitting process. The Region initially compiled the list based on the entities the District identified in its application as discharging to the District’s Treatment Plant. Upper Black- stone I, 14 E.A.D. at 589. Then, later, the Region expanded the list when the District provided comments during the public comment process identifying addi- tional entities that discharge to the District’s Treatment Plant. Id. There is no indi- cation in the permitting history and the Region’s explanation for its actions that suggests the Region sought to do more than identify the entities contributing was- tewater flow to the District’s Treatment Plant.

   The Board also rejects the District’s and Worcester’s additional contention

that the Region exceeded its authority by retaining language on the Permit’s first page stating that “[o]nly municipalities specifically listed above are authorized to discharge wastewater into the [District’s] facility.” See Dist. Pet. at 6. The Region explains that “[t]he purpose behind this provision is * * * to compel the District (and not any of the satellites) to seek a permit modification should it decide to tie-in another municipality during the life of the permit.” Region’s Resp. at 9. This reading of the Permit language is also binding on the Region, Austin Power, 6 E.A.D. at 717, and precludes the Region from later seeking to impose liability on the listed municipalities or sewer district for any alleged violation of this Per- mit language. Thus, this Permit language imposes no requirements on Worcester or any other municipality. Moreover, the District has not alleged that the Region

  8 The Permit states as follows: “The City of Worcester, the Towns of Millbury, Auburn,

Holden, West Boylston, Rutland, Sutton, Shrewsbury, Oxford and Paxton, and the Cherry Valley Sewer District are authorized to discharge wastewater to the UBWPAD facility.” Permit at 1.

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lacks federal authority to impose this condition on the District;9 nor has the Dis- trict alleged that this condition exceeds the Region’s authority under 40 C.F.R.
§ 122.43(a) to establish conditions to provide for and assure compliance with the CWA and regulations,10 including regulations requiring proper operation and maintenance of the Treatment Plant and related appurtenances, e.g., id.
§ 122.41(e).11

   More importantly, because nobody – not the District, not Worcester, nor

any other party – requested review of this condition imposed by the Region’s 2008 permitting decision, this condition became fully effective and enforceable on January 1, 2009, pursuant to 40 C.F.R. § 124.16(a) and the Region’s Novem- ber 26, 2008 notice. See Letter from Robert W. Varney, Regional Administrator, U.S. EPA Region 1, to Thomas K. Walsh, Director, Upper Blackstone Water Pol- lution Abatement District (Nov. 26, 2008) (“November 2008 Notice”). In particu- lar, the regulations state that, if a petition for review is filed, only the contested permit conditions are stayed pending final agency action and the uncontested con- ditions become effective after the permit issuer provides notice identifying the uncontested severable permit conditions. 40 C.F.R. § 124.16(a)(1), (2). Specifi- cally, “[t]he Regional Administrator shall, as soon as possible after receiving noti- fication from the EAB of the filing of a petition for review, notify the EAB, the applicant, and all other interested parties of the uncontested (and severable) condi- tions of the final permit that will become fully effective enforceable obligations of

     9 The District argues that this Permit language “conflicts” with the District’s authority under its

enabling legislation. Dist. Pet. at 7. The District’s argument, however, fails to demonstrate any con- flict, but instead the District confirms that it has authority “to determine which entities may become members of the District and/or send wastewater to the District’s facility.” Id. The Permit requires the District to use this authority to restrict the District’s receipt of new wastewater flows, unless the Dis- trict applies for a Permit modification allowing it to accept additional flows. The Permit requires the District to use its authority to restrict new flows as a condition of the Permit’s grant to the District of permission to discharge treated wastewater into waters of the United States. For the same reason, the Board also rejects the District’s contention that the Region exceeded its authority by imposing a Permit condition requiring the District to enter into agreements with the owners of sewage collection systems to reduce inflow and infiltration from those collection systems. Id. at 8-10; see also Worcester Pet. at 2-3. As noted, the District’s argument demonstrates that the District has authority “to determine which entities may become members of the District and/or send wastewater to the District’s facility.” Dist. Pet. at 7. The Permit merely requires the District to use this authority to address the problem of inflow and infiltration in the flows the District accepts for treatment prior to discharge by the District into waters of the United States.
10 Notably, the regulations specifically require all permittees to provide notice to the permit

issuer regarding new introduction of pollutants into a publicly owned treatment works (“POTW”) by an indirect discharger and regarding substantial change in the volume or character of pollutants being introduced into a POTW. 40 C.F.R. § 122.42(b)(1), (2).
11 The District also has failed to explain how this condition restricting the District’s authority

to accept new waste flows is not an appropriate exercise of the Region’s authority under 40 C.F.R.
§ 122.44(k)(2) and (4) respecting use of best management practices to control stormwater discharges, or to achieve effluent limitations and standards, or to carry out the purposes and intent of the CWA.

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the permit as of [30 days after the date of the notification].” Id. § 124.16(a)(2)(ii). The Region’s November 2008 Notice identified the contested conditions that were stayed as a result of the petitions for review and it stated that “[a]ll other condi- tions of the Permit are uncontested and severable from the Contested Conditions” and thus “all of the other conditions will become fully effective enforceable obli- gations of the Permit on January 1, 2009.” November 2008 Notice at 2. The Dis- trict and Worcester did not immediately or at any time after the November 2008 Notice object that the Region’s Notice was in error.

  Accordingly, the Permit’s conditions that were not identified as contested in

the November 2008 Notice became final on January 1, 2009, and may not be challenged by the District or Worcester in the present proceeding. The conditions that became final in January 2009 included the Permit language at issue here prohibiting the District from accepting discharge from entities not listed in the Permit’s first paragraph. See id. at 1.12

   The Board also rejects the District’s and Worcester’s additional contention

that the Permit’s requirements in Part E regarding inflow and infiltration, which the Permit expressly limits “only to the extent that [the District] owns the separate sewer system,” are nevertheless “inappropriate, contrary to the [Remand] Order and unnecessarily confusing.” Dist. Pet. at 10; see also Worcester Pet. at 2-3. At bottom, the District and Worcester argue that, because the sewage collection sys- tem the District owns is allegedly approximately 1,000 feet in length,13 there is no practical reason for the Region to impose these standard permit conditions on the District. Dist. Pet. at 10-11; Worcester Pet. at 2-3. However, the District’s admis- sion that it owns a sewage collection system is sufficient grounds for the Region to include standard permit terms governing the operation and maintenance of that collection system, no matter what its length. Accordingly, review of these Permit conditions in Permit Parts D and E are denied.

  Finally, the Board rejects the District’s request for review of the Permit con-

dition, also in Part E, that states the “‘permittee is responsible to insure that high flows do not cause I/I related effluent limit violations.’” Dist. Pet. at 12 (quoting Permit Pt. E). The provision now challenged by the District merely restates in a specific context the standard language, which the regulations require to be in-

    12 The November 2008 Notice identified the contested co-permittee conditions as the “imposi-

tion of requirements of Parts D and E on the District and other co-permittees, including the timing for submittal of the Inflow/Infiltration Plan (see Permit at 1 and Parts D and E).” November 2008 Notice at 1. The Notice did not identify as contested the Permit’s language stating that only the listed entities are authorized to discharge to the District’s Treatment Plant.
13 The District has not identified where this alleged fact is established in the administrative

record. Nevertheless, even assuming, arguendo, that it is in fact true, the allegedly short length of the District’s collection system is not grounds for removal of these Permit conditions for the reason stated in the text.

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cluded in all permits, that the permittee comply with all conditions of the permit including effluent limits. 40 C.F.R. § 122.41(a). Stated simply, the District is re- sponsible for the effluent it discharges to the Blackstone River and the District is prohibited from discharging effluent that violates the Permit’s effluent limits. This prohibition applies under all circumstances, including under high flow conditions whether or not caused by inflow and infiltration in the District’s collection system or in collection systems owned by other entities that discharge to the District’s Treatment Plant. The regulations also bar the District from arguing in an enforce- ment action that the District would have needed to halt or reduce the permitted activity in order to maintain compliance with the conditions of the Permit. Id.
§ 122.41(c). In other words, the District is required to reduce the wastewater it accepts for treatment if that is what it must do in order to comply with its NPDES Permit.14 The Permit’s conditions, including the Permit’s effluent limits, were im- posed to ensure that the District’s discharges comply with the water quality stan- dards of all affected states.15 Id. § 122.4(d).

C. The Region Followed the Proper Procedure on Remand When the Region Decided to Issue the Permit Without Opening Public Comment on the Changes It Made to the Permit

  After the Board remanded the co-permittee conditions to the Region on

May 28, 2010, the Region decided to “forego imposition of any co-permittee re- quirements” and issued its Determination on Remand, making final changes to the Permit on July 7, 2010. Determination on Remand at 2-3. The Region took this action directly without issuing a new draft permit and without opening a new pub- lic comment period on the change. The Region explained that “questions raised by the Region’s analysis on remand are neither substantial nor new in the context of this permit proceeding” and that, therefore, it was exercising its discretion under 40 C.F.R. § 124.14 to not open the record for additional public comment. Deter- mination on Remand at 3-4 n.4.

  The District argues that the Region erred by applying 40 C.F.R. § 124.14 to

determine whether to reopen the public comment period. Dist. Pet. at 15-18. The District contends that the changes the Region made to the Permit constitute a per- mit modification under 40 C.F.R. § 122.62(a)(15), for which a new draft permit is

   14  The Board rejects the District’s suggestion that it cannot be held responsible for problems in

the waste flow the District receives from its members. Dist. Pet. at 9. The District’s sole activity is treating wastewater the District receives from its members and other municipalities in the area. The District cannot shirk its duty to treat that waste flow and comply with the Permit’s conditions, includ- ing effluent limits, merely by claiming that it has received the compliance problem in the waste flows it accepts for treatment.

   15 In addition, the regulations recognize the need to control inflow and infiltration. See

40 C.F.R. § 122.21(j)(2)(i).

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required under 40 C.F.R. §§ 124.5(c) and .6 and a new public comment period is required under § 124.10. See Dist. Pet. at 15-16. The District is mistaken and its argument must be rejected because, as explained below, it was appropriate for the Region to use 40 C.F.R. § 124.14 to determine whether to open public comment on remand, and the District has not demonstrated that the Region misapplied sec- tion 124.14.

   1. On Remand, Section 124.14 (Not Section 122.62(a)(15)) Governs
      the Region’s Decision Whether to Open Public Comment

  When the Board issued its remand decision, the Board held invalid the Re-

gion’s initial 2008 permitting decision to the extent it established the co-permittee conditions.16 Thus, at that time, after the Board issued its decision, there was no valid final permit decision establishing co-permittee conditions for the Region to modify through the permit modification process of 40 C.F.R. § 122.62(a)(15).17 Instead, the Board’s decision vacated the Region’s initial decision on the co-permittee conditions and the Region was then required to complete its deci- sionmaking process regarding those conditions and to issue a valid final permit- ting decision pursuant to 40 C.F.R. § 124.15(a).

  The Board has consistently described the procedural posture of remanded

permit conditions as returned to pre-final decision status. Thus, for example, the Board has frequently explained that, on remand, the permit issuer should “supple- ment the record” with new information and the Board has explained that the per- mit issuer may reopen public comment under § 124.14 as provided in that section. See, e.g., In re Chukchansi Gold Resort & Casino Waste Water Treatment Plant, 14 E.A.D. 260, 281 (EAB 2009) (“The Region should supplement the record as necessary during the remand process. Additionally, the Region may reopen the record for additional public comment as necessary, in accordance with 40 C.F.R.
§ 124.14.”); In re Conocophillips Co., 13 E.A.D. 768, 769 (EAB 2008) (same); In re Shell Offshore, Inc., 13 E.A.D. 357, 391 (EAB 2007); In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 707 (EAB 2006). Supplementing the record

    16 Because the regulations provide that the uncontested and severable Permit conditions were

not stayed and became final on January 1, 2009, the Board’s Upper Blackstone I decision did not remand the entire 2008 permitting decision to the Region, but instead remanded only the stayed provi- sions. See note 12 and accompanying test above.

    17 Specifically, the Board held that the Region failed to “sufficiently articulate[] in the record

of this proceeding a 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 sepa- rately owned and operated collection systems that discharge to the treatment plant.” Upper Black- stone I, 14 E.A.D. at 589-90. Notably, the Board rejected the Region’s decision because the decision was not adequately explained in the record; the Board did not hold that the Region applied a mistaken interpretation of law. Thus, section 122.62(a)(15), which the District cites and which authorizes permit modification to correct a mistaken interpretation of law, would not apply in any event.

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with new information is authorized prior to the permitting office issuing the final permit decision under 40 C.F.R. § 124.15(a). See 40 C.F.R. §§ 124.17(b),
.18(b)(4), (6). Additionally, reopening public comment under section 124.14 is also an authority applicable to the process prior to a final permit decision under section 124.15(a). The Board’s precedents, thus, indicate that remand proceedings are governed by 40 C.F.R. part 124 as a continuation of the exiting permit appli- cation proceeding, not as a new proceeding to modify an existing permit. The Board has never required a permitting authority to use the permit modification provisions when making changes to a permit’s terms on remand.18

  Moreover, here, where the Region’s decision to issue the Permit without the

co-permittee condition is precisely what the District requested in its public com- ments, there is no reason for the Region to be required to follow different or more extensive procedural steps in making its decision on remand after appeal than had the Region made the same decision in the first instance after its initial review of the public comments. Accordingly, the Region committed no error in deciding to apply 40 C.F.R. § 124.14 to determine whether to reopen public comment on re- mand in this case.

   2. The District Has Not Demonstrated Clear Error in the Region’s
      Application of Section 124.14 in Deciding Not to Reopen Public
      Comment

   Although the District has not alleged that any of the conditions identified in

40 C.F.R. § 124.14 for reopening public comment exist in the present case, never- theless the District has, in one respect, alleged that the Region abused its discre- tion in determining not to reopen public comment under section 124.14. The Dis- trict notes that the Region made reference in its Determination on Remand to a communication the Region received from the Rhode Island Department of Envi- ronmental Management (“RIDEM”) requesting the Region move forward expedi- tiously to place into effect the Permit conditions appealed but not remanded by the Board. Dist. Pet. at 17-18. The District alleges that it was an abuse of discre- tion for the Region to receive this information from RIDEM and to not solicit comment from the District and other interested persons. Id. at 18.

The District’s contention must fail. The Region was authorized to add

RIDEM’s communication to the administrative record. As already noted, when a

   18 Occasionally, permit issuers have made changes to a permit condition while a petition for

review was pending before the Board and, under those circumstances where the Board has not held the permitting decision invalid, permit issuers have used the modification procedures to effect the change. The Region followed this procedure in the present case when adding an aluminum limit to the Permit. See note 2 above. Such use of the modification provisions to make changes to a permit condition that the Board has not invalidated, and that the permit issuer has not withdrawn, is consistent with the Board’s decision here.

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permit is in the procedural posture after the close of public comment and awaiting the Region’s final permit decision under 40 C.F.R. § 124.15(a), the Region has the authority to add new information to the administrative record. The information the Region may add to the administrative record is not limited only to information received during public comment. To the contrary, under 40 C.F.R. §§ 124.17(b) and .18(b)(4), the permit issuer may add information to the record in response to the public comments. In addition, under § 124.18(b)(6), “[t]he administrative re- cord for any final permit shall consist of * * * (6) [o]ther documents contained in the supporting file for the permit * * * .” 40 C.F.R. § 124.18(b)(6). These provi- sions are not designed to place limits on the relevant information the Region may consider when making its final permit decision, but instead are designed to ensure that all information the Region actually relies upon is, in fact, included as part of the record of the Region’s decision. In addition, as explained in Upper Black- stone I, there is no ex parte rule prohibiting the Region from communicating with RIDEM. 14 E.A.D. at 593 n.21;19 see also Sierra Club v. Costle, 657 F.2d 298, 386-400 (D.C. Cir. 1981) (declining in informal rulemaking to find error based on EPA’s addition to the docket of ex parte communication received after the close of public comment where the procedural rules authorized addition of material to the docket after close of public comment). The Region has the discretionary au- thority to consider and rely upon information, including comments, received after the close of public comment and is not required to reopen the public comment period except where the Region determines in its discretion that the new informa- tion it relies upon raises substantial new questions. In re Prairie State Generating Co., 13 E.A.D. 1, 48-49, 68-69 & n.72 (EAB 2006), aff’d sub. nom Sierra Club v. U.S. EPA, 499 F.3d 653 (7th Cir. 2007); see also In re Steel Dynamics, Inc., 9 E.A.D. 165, 194 & n.32 (EAB 2000) (permit issuer considered and responded to late-filed comment).

  Moreover, RIDEM’s communication only urged the Region to proceed with

haste based on circumstances already well documented and discussed in the re- cord. The e-mail from RIDEM Chief of Surface Water Protection states that Rhode Island waters continue to suffer significant impairment due to excessive nitrogen and phosphorus inputs, that Rhode Island facilities are subject to permit limits reducing nitrogen and phosphorus discharges, and that the District is a sig- nificant contributor to the impairment of Rhode Island waters. E-mail from An- gelo S. Liberti, PE, Chief Surface Water Protection, RIDEM, to Damien Houli- han, U.S. EPA Region 1 (June 15, 2010). In its remand decision, the Board discussed similar information already in the administrative record. See Upper

   19 As explained in Upper Blackstone I, “NPDES permitting proceedings are not required to be

conducted in accordance with APA section 556.” 14 E.A.D. at 593 n.21 (citing 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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Blackstone I, 14 E.A.D. at 594-623. In this respect, RIDEM’s post-remand com- munication added no new information that was not already part of the record of this proceeding. The e-mail from RIDEM did not advocate any particular means by which the Region could bring speedy conclusion to the permitting proceeding. Thus, RIDEM’s communication did not constitute “substantial new questions” that would warrant reopening the public comment period under 40 C.F.R. § 124.14(b), and the Board further concludes that RIDEM’s communication, which was dupli- cative of information already in the record, was not material to the Region’s pro- cedural decision. Further, as explained above in Part VI.B, the Board also finds no clear error in the substance of the Region’s decision.

   Accordingly, for the reasons discussed above, the Board rejects the Dis-

trict’s contention that the Region committed clear error when it issued its final permit decision on the co-permittee issue without reopening public comment on the changes the Region made to the draft permit’s co-permittee conditions.

                             VII. CONCLUSION

   For the foregoing reasons, the Board denies, in all respects, the petitions for

review filed by Upper Blackstone Water Pollution Abatement District and the City of Worcester, Massachusetts. Also for the reasons stated above, the Board denies the petitions for review filed by the Town of Millbury, Massachusetts and the Town of West Boylston because these municipalities do not have standing to petition for review of the Permit as changed by the Region’s Determination on Remand.

  So ordered.




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