Town of Newmarket, New Hampshire (Board decision, December 2, 2013)

Read the official release (epa.gov)

Plain-English summary

EPA Region 1 issued the Town of Newmarket, New Hampshire, an NPDES permit for its wastewater treatment plant's discharges to the Lamprey River. The permit set a 3.0 milligrams-per-liter total-nitrogen effluent limit to protect water quality in the Lamprey River and Great Bay. The Great Bay Municipal Coalition challenged the limit, arguing that the Region relied on an unadopted numeric threshold, failed to account properly for nonpoint sources, and violated procedural requirements. The Board found that the Region reasonably used the available scientific record, properly considered the contribution of the plant's discharge, and complied with its procedural obligations. It denied review, so the permit remained in place. No monetary penalty was imposed by this permit decision.

Decision snapshot

• Cited authorities: 33 U.S.C. §§ 1251, 1311, 1313, 1314, 1315, and 1342; 40 C.F.R. §§ 122.44, 124.10, 124.13, 124.14, 124.17, 124.18, 124.19, 124.53, 130.7, and 131.21
• Outcome: Review of the NPDES permit was denied, and the 3.0 mg/L total-nitrogen limit remained in place.
• Key point: A difference of scientific opinion does not establish clear error or abuse of discretion when the permit record supports the Region's water-quality analysis.

Full text (EPA EAB public release)

Warning: truncated output (original token count: 25633) Total output lines: 1750

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IN RE TOWN OF NEWMARKET, NEW HAMPSHIRE
NPDES Appeal No. 12-05
ORDER DENYING REVIEW

Decided December 2, 2013

Syllabus
The Great Bay Municipal Coalition, representing the municipalities of Dover and Rochester, New Hampshire (“Coalition”), petitions the Environmental Appeals Board (“Board”) to review an effluent limitation for total nitrogen (“TN”) in a Clean Water Act National Pollutant Discharge Elimination System permit (“Permit”) that the United States Environmental Protection Agency, Region 1 (“Region”), issued on November 16, 2012, to the Town of Newmarket, New Hampshire, for its wastewater treatment plant. The Permit reauthorizes discharges of treated wastewater effluent into the Lamprey River from the Town’s treatment plant and includes a nitrogen effluent limit of 3.0 mg/l TN. The Coalition argues that Board review of the Region’s decision is appropriate in this matter on the following four principal grounds: (1) the Region abused its discretion in determining that a permit effluent limit of 3.0 mg/l for TN is necessary to achieve the State of New Hampshire’s narrative water quality standards for the Lamprey River and the Great Bay of New Hampshire (in large part, the Coalition asserts that the Region erred by relying on proposed numeric nutrient criteria in a 2009 New Hampshire Department of Environmental Services study referred to as the “Great Bay Nutrient Report” because the State’s analysis was scientifically flawed); (2) the Region erred by using the State’s proposed nutrient criteria without undertaking rulemaking; (3) the Region erred in its consideration of the contribution of nonpoint sources in determining the Permit’s nitrogen limits; and (4) the Region did not satisfy applicable procedural obligations in issuing the Permit. Held: Upon consideration of the Coalition’s arguments, the Board denies review of the Region’s Permit decision in all respects.

1. The Region did not clearly err or abuse its discretion in determining that a
   nitrogen permit effluent limitation of 3.0 mg/l TN is necessary to achieve New Hampshire’s narrative water quality standards for the Lamprey River and the Great Bay.

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$

The Board concludes that the Coalition failed to demonstrate that the Region clearly erred or abused its discretion in selecting an instream water quality target of 0.3 mg/l TN for the Permit. Contrary to the Coalition’s assertion, the Region properly considered the numeric water quality thresholds for nitrogen proposed by the State of New Hampshire in the State’s Great Bay Nutrient Report. The record contains substantial support for the scientific validity of the Great Bay Nutrient Report and demonstrates that the Region’s consideration of the Report was consistent with EPA regulations. At most, the Coalition has demonstrated a difference of scientific opinion between the Coalition and the Region. This is insufficient to demonstrate clear error or an abuse of discretion.

$

The Board concludes that the Coalition failed to demonstrate that the Region clearly erred or abused its discretion in determining that effluent from the Newmarket wastewater treatment plant had a “reasonable potential to cause or contribute” to an exceedance of the 0.3 mg/l TN instream target.

$

The Board concludes that the Coalition failed to demonstrate that the Region clearly erred or abused its discretion in determining that a permit effluent limitation of 3.0 mg/l TN is necessary to achieve the instream water quality target of 0.3 mg/l TN.

2. The Coalition has failed to demonstrate that the Region unlawfully applied the
   water quality thresholds for nitrogen proposed in the Great Bay Nutrient Report as revised water quality standards without undertaking rulemaking.
3. The Coalition has failed to demonstrate that the Region clearly erred or abused
   its discretion in its consideration of the contribution of nonpoint sources to nitrogen discharges into the Lamprey River in determining the appropriate nitrogen effluent limitation in the Newmarket permit.
4. The Coalition has failed to demonstrate that the Region violated any applicable
   procedural requirements in issuing the Newmarket permit. In particular, the Board rejects the Coalition’s assertion that the Region impermissibly excluded information from the record, changed its rationale for the permit’s nitrogen effluent limit after the close of the public comment period, or violated the Coalition’s due process rights in conducting the peer review of the Great Bay Nutrient Report.

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Before Environmental Appeals Judges Leslye M. Fraser, Catherine R. McCabe, and Kathie A. Stein. Opinion of the Board by Judge McCabe: I. STATEMENT OF THE CASE The Great Bay Municipal Coalition, representing the municipalities of Dover and Rochester, New Hampshire (“Coalition” or “Petitioner”), petitions the Environmental Appeals Board (“Board”) to review an effluent limitation for nitrogen in a Clean Water Act (“CWA” or “Act”) National Pollutant Discharge Elimination System (“NPDES”) permit (“Permit”) that the United States Environmental Protection Agency (“EPA” or “Agency”), Region 1 (“Region”), issued on November 16, 2012, to the Town of Newmarket, New Hampshire (“Town”), for its wastewater treatment plant (“Newmarket Plant”). See Petition for Review of a NPDES Permit Issued by EPA Region 1 (“Petition”). The Permit reauthorizes discharges of treated wastewater effluent into the Lamprey River from the Town’s treatment plant. The Region, as well as two parties participating in this proceeding as amicus curiae (the Conservation Law Foundation, Town of Newington, and New Hampshire Audubon (collectively “CLF”) and the New Hampshire Department of Environmental Services (“NHDES”)) have filed responses to the Petition. For the reasons discussed below, the Board denies review of the Region’s final permit decision for the Newmarket NPDES permit. II. ISSUES The Coalition’s appeal presents the following issues for resolution by the Board: A.

Did the Region clearly err or abuse its discretion in determining that a permit effluent limitation of 3.0 milligrams per liter (“mg/l”) total nitrogen (“TN”) is necessary to achieve New Hampshire’s narrative water quality standards for the Lamprey River and the Great Bay? 1.

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Did the Region clearly err or abuse its discretion in determining that an instream target of 0.3 mg/l TN is necessary to achieve the State’s narrative water quality standards?

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2.

Did the Region clearly err or abuse its discretion in determining that effluent from the Newmarket Plant had a “reasonable potential to cause or contribute” to an exceedance of the 0.3 mg/l TN instream target?

3.

Did the Region clearly err or abuse its discretion in determining that a permit effluent limitation of 3.0 mg/l TN is necessary to achieve the instream water quality target of 0.3 mg/l TN?

B.

Did the Region clearly err by using the State’s proposed 0.3 mg/l TN water quality criterion as a revised water quality standard, without undertaking rulemaking?

C.

Did the Region clearly err in considering the contribution of nonpoint sources in determining the necessary and appropriate nitrogen effluent limitations for the Newmarket permit?

D.

Did the Region satisfy its procedural obligations in issuing the Newmarket permit? III. PRINCIPLES GUIDING BOARD REVIEW

Section 124.19 of Title 40 of the Code of Federal Regulations governs Board review of an NPDES permit. In any appeal from a permit decision issued under part 124, the petitioner bears the burden of demonstrating that review is warranted. See 40 C.F.R. § 124.19. A. Standard of Review Under 40 C.F.R. § 124.19, the Board has discretion to grant or deny review of a permit decision. See In re Avenal Power Ctr., LLC, 15 E.A.D. 384, 394-95 (EAB 2011) (citing Consolidated Permit Regulations, 45 Fed. Reg. 33,290, 33,412 (May 19, 1980)), appeal docketed sub nom. Sierra Club v. EPA, No. 11-73342 (9th Cir. Nov. 3, 2011). Ordinarily, the Board will deny review of a permit and thus not remand it unless the permit decision either is based on a clearly erroneous finding of fact or conclusion of law, or involves a matter of policy or exercise of discretion that warrants review. 40 C.F.R. § 124.19; 1 accord, e.g., In re Prairie State

1

The EPA recently revised 40 C.F.R. § 124.19 and other related provisions in parts 124 and 270 of the Code of Federal Regulations to clarify practices and procedures in appeals of permit decisions filed before the Board. See Revisions to Procedural Rules

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Generating Co., 13 E.A.D. 1, 10 (EAB 2006), aff’d sub. nom Sierra Club v. U.S. EPA, 499 F.3d 653 (7th Cir. 2007). In considering whether to grant or deny review of a permit, the Board is guided by the preamble to the regulations authorizing appeal under part 124, in which the Agency stated that the Board’s power to grant review “should be only sparingly exercised” and that “most permit conditions should be finally determined at the [permit issuer’s] level.” 45 Fed. Reg. at 33,412; see also 78 Fed. Reg. at 5,281. When evaluating a challenged permit decision for clear error, the Board examines the administrative record that serves as the basis for the permit to determine whether the permit issuer exercised his or her “considered judgment.” See, e.g., In re Steel Dynamics, Inc., 8 E.A.D. 165, 191, 224-25 (EAB 2000); In re Ash Grove Cement Co., 7 E.A.D. 387, 417-18 (EAB 1997). The permit issuer must articulate with reasonable clarity the reasons supporting its conclusion and the significance of the crucial facts it relied upon when reaching its conclusion. E.g., In re Shell Offshore, Inc., 13 E.A.D. 357, 386 (EAB 2007). As a whole, the record must demonstrate that the permit issuer “duly considered the issues raised in the comments” and ultimately adopted an approach that “is rational in light of all information in the record.” In re Gov’t of D.C. Mun. Separate Storm Sewer Sys., 10 E.A.D. 323, 342 (EAB 2002); accord In re City of Moscow, 10 E.A.D. 135, 142 (EAB 2001); In re NE Hub Partners, LP, 7 E.A.D. 561, 567-68 (EAB 1998), review denied sub nom. Penn Fuel Gas, Inc. v. EPA, 185 F.3d 862 (3d Cir. 1999). On matters that are fundamentally technical or scientific in nature, the Board typically will defer to a permit issuer’s technical expertise and experience, as long as the permit issuer adequately explains its rationale and supports its reasoning in the administrative record. See In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 510 (EAB 2006) (the Board generally defers to the Region on technical determinations where the Region’s approach was rational in light of all the information in the record); see also In re Carlota Copper Co., 11 E.A.D. 692, 708 (EAB 2004); NE Hub, 7 E.A.D. at 570-71.

to Clarify Practices and Procedures Applicable in Permit Appeals Pending Before the Board, 78 Fed Reg. 5281, 5288 (Jan. 25, 2013), available at www.epa.gov/eab (click on Regulations Governing Appeals). The revised part 124 provisions became effective on March 26, 2013, and apply to any filings with the Board on or after this date. Id. Because the Petition in this matter was filed before the effective date of the revised provisions, the part 124 provisions cited in this decision correspond to the provisions in effect at the time the petitions were filed.

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In reviewing an exercise of discretion by the permitting authority, the Board applies an abuse of discretion standard. See In re Guam Waterworks Auth., 15 E.A.D. 437, 443 n.7 (EAB 2011). The Board will uphold a permitting authority’s reasonable exercise of discretion if that decision is cogently explained and supported in the record. See Ash Grove, 7 E.A.D. at 397 (“[A]cts of discretion must be adequately explained and justified.”); see also Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983) (“We have frequently reiterated that an agency must cogently explain why it has exercised its discretion in a given manner

• • *.”).
    B. Petitioner’s Burden on Appeal
    The burden of demonstrating that the Board should review a permit rests with the petitioner. 40 C.F.R. § 124.19(a)(1)-(2). A petitioner seeking review must demonstrate that any issues and arguments it raises on appeal have been preserved for Board review, unless the issues or arguments were not reasonably ascertainable before the close of the public comment period. 40 C.F.R. §§ 124.13, .19(a); see In re City of Moscow, 10 E.A.D. 135, 141, 149-50 (EAB 2001); In re City of Phoenix, 9 E.A.D. 515, 524 (EAB 2000). 2 Assuming that the issues have been preserved, the petitioner must specifically state its objections to the permit and explain why the permit issuer’s previous response to those comments was clearly erroneous or otherwise warrants review. 3 40 C.F.R. § 124.19(a); see, e.g., In re Teck Cominco 2

In other words, the regulations require that persons who seek review of a permit decision “must raise all reasonably ascertainable issues and submit all reasonably available arguments supporting their position by the close of the public comment period” on the draft permit. 40 C.F.R. § 124.13 (emphases added). 3

Federal circuit courts of appeal have upheld this Board requirement that a petitioner must substantively confront the permit issuer’s response to the petitioner’s previous objections. City of Pittsfield v. EPA, 614 F.3d 7, 11-13 (1st Cir. 2010), aff’g In re City of Pittsfield, NPDES Appeal No. 08-19 (EAB Mar. 4, 2009) (Order Denying Review); Mich. Dep’t of Envtl. Quality v. EPA, 318 F.3d 705, 708 (6th Cir. 2003) (“[Petitioner] simply repackag[ing] its comments and the EPA’s response as unmediated appendices to its Petition to the Board * * * does not satisfy the burden of showing entitlement to review.”), aff’g In re Wastewater Treatment Facility of Union Twp., NPDES Appeal Nos. 00-26 & 00-28 (EAB Jan. 23, 2001) (Order Denying Petitions for Review); LeBlanc v. EPA, No. 08-3049, at 9 (6th Cir. Feb. 12, 2009) (concluding that the Board correctly found petitioners to have procedurally defaulted where petitioners merely restated “grievances” without offering reasons why the permit issuer’s responses were clearly erroneous or otherwise warranted review), aff’g In re Core Energy, LLC, UIC Appeal No. 07-02 (EAB Dec. 19, 2007) (Order Denying Review).

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Alaska, Inc., 11 E.A.D. 457, 494-95 (EAB 2004); In re Westborough, 10 E.A.D. 297, 305, 311-12 (EAB 2002); In re City of Irving, 10 E.A.D. 111, 129-30 (EAB 2001), review denied sub nom. City of Abilene v. EPA, 325 F.3d 657 (5th Cir. 2003). The Board consistently has denied review of petitions that merely cite, attach, incorporate, or reiterate comments previously submitted on the draft permit. E.g., In re City of Pittsfield, NPDES Appeal No. 08-19 (EAB Mar. 4, 2009) (Order Denying Review), aff’d, 614 F.3d 7, 11-13 (1st Cir. 2010); In re Knauf Fiber Glass, GmbH, 9 E.A.D. 1, 5 (EAB 2000) (“Petitions for review may not simply repeat objections made during the comment period; instead they must demonstrate why the permitting authority’s response to those objections warrants review.”); In re Hadson Power 14, 4 E.A.D. 258, 294-95 (EAB 1992) (denying review where petitioners merely reiterated comments on draft permit and attached a copy of their comments without addressing permit issuer’s responses to comments). IV. SUMMARY OF DECISION For all the reasons stated below, the Board concludes that Petitioner has failed to establish that: (A) the Region clearly erred or abused its discretion in determining that an instream target of 0.3 mg/l TN is necessary to achieve the State’s narrative water quality standards for the receiving waters, effluent from the Newmarket Plant had a “reasonable potential to cause or contribute” to an exceedance of the 0.3 mg/l instream target for TN, and a permit effluent limitation of 3.0 mg/l TN is necessary to achieve the State’s narrative water quality standards; (B) the Region clearly erred by allegedly applying the 0.3 mg/l water quality threshold proposed in a 2009 State study as a revised water quality standard, without undertaking rulemaking; (C) the Region clearly erred in considering the contribution of non-point sources in determining the necessary and appropriate nitrogen effluent limitations for the Newmarket permit; or (D) the Region failed to satisfy its procedural obligations in issuing the Newmarket permit. 4 V. PROCEDURAL AND FACTUAL HISTORY The Permit. On November 16, 2012, the Region issued a renewed NPDES permit to the Town pursuant to section 402 of the CWA, 33 U.S.C. § 1342. The permit authorizes discharges of treated wastewater from the Town’s 0.85 million gallons-per-day wastewater treatment plant into the tidal portion of the Lamprey River. The Region issued the Town’s existing permit on April 27, 2000, and modified the permit on July 8, 2002. See U.S. EPA Region I Fact Sheet (“Fact 4

The permittee, Town of Newmarket, New Hampshire, has not sought review of the permit.

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Sheet”) at 3 (Sept. 2011) (Administrative Record (“A.R.”) A.8). Although the permit expired on June 11, 2005, it has been administratively extended because the Town filed a timely application for permit re-issuance. Id.; 40 C.F.R. § 122.6. The Receiving Waters. The Lamprey River is one of five tidal rivers discharging directly into the Great Bay of New Hampshire. The Newmarket Plant discharges its wastewater within the tidal, estuarine portion of the river, about 1.6 miles above its mouth, where it enters Great Bay. See Fact Sheet at 6, 12. The Great Bay is part of the Great Bay Estuary, one of the estuaries of “national significance” designated for special attention under the Act’s National Estuary Program, CWA § 320, 33 U.S.C. § 1330. Id. at 11. The Region explained the environmental importance of the Great Bay Estuary system as follows: The centerpieces of the estuary are Great Bay and Little Bay. Great Bay proper is a tidally-dominated, complex embayment on the New Hampshire-Maine border. Great Bay is unusual because of its inland location, more than five miles up the Piscataqua River from the ocean. It is a popular location for kayaking, birdwatching, commercial lobstering, recreational oyster harvesting, and sportfishing for rainbow smelt, striped bass, and winter flounder. Over forty New Hampshire communities are entirely or partially located within the coastal watershed. The estuary receives treated wastewater effluent from 18 publicly owned treatment works (14 in New Hampshire and 4 in Maine). The Great Bay Estuary is composed of a network of tidal rivers, inland bays, and coastal harbors. The estuary extends inland from the mouth of the Piscataqua River between Kittery, Maine and New Castle, New Hampshire, to Great Bay proper. In all, estuarine tidal waters cover 17 square miles with 144 miles of tidal shoreline. Five tidal rivers [including the Lamprey River] discharge into Great Bay and Little Bay.

---

Maintaining water quality within an estuary is important for many reasons. Estuaries provide a variety of habitats, such as shallow open waters, freshwater and saltwater marshes, sandy beaches, mud and sand flats, rocky shores, oyster reefs, tidal pools, and seagrass beds. Tens of thousands of birds, mammals, fish, and other wildlife rely on the sheltered waters of estuaries as protected places to spawn. Moreover, estuaries also provide a number of recreation values such as swimming, boating, fishing, and bird watching.

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Estuaries in addition have an important commercial value since they serve as nursery grounds for two thirds of the nation’s commercial fish and shellfish, and support tourism drawing on the natural resources that estuaries supply. Fact Sheet at 11-12; see also, Office of Water, U.S. EPA, EPA 842-F-98-009 Coastal Watershed Factsheets-Estuaries and Your Coastal Watershed (July 1998) (A.R. M.17). According to the National Oceanic and Atmospheric Administration (“NOAA”) and many scientists, the nation’s estuaries, including the Great Bay, are increasingly suffering from “eutrophication.” Eutrophication is a process in which the addition of nutrients (largely nitrogen and phosphorus) to water bodies stimulates algal growth, which can lead to low dissolved oxygen and loss of submerged aquatic vegetation, degrading the health of the aquatic habitat. See NOAA, Effects of Nutrient Enrichment on the Nation’s Estuaries: A Decade of Change at 2 (“2007 NOAA Report”) (2007) (A.R. L.3). Although some eutrophication occurs naturally, e.g., as a result of geological weathering and inputs from ocean upwelling, NOAA scientists have concluded that “in recent decades, human activities and population growth have greatly increased nutrient inputs to systems, leading to degraded water quality and impairments of estuarine resources for human use.” Id. The 2007 NOAA Report further explains that:
[P]opulation growth and its related nutrient sources, such as agriculture, wastewater treatment plants, urban runoff, and consumption of fossil fuels (atmospheric deposition), have increased nutrient inputs to many times their natural levels, accelerating eutrophication. Nutrient increases can threaten biota, as well as lead to impairment of aesthetics, health, fishing opportunities and success, tourism, and real estate value. Id. (citation omitted); see also NOAA, National Estuarine Eutrophication Assessment: Effects of Nutrient Enrichment in the Nation’s Estuaries (“1999 NOAA Report”) (1999) (A.R. L.30). The 1999 and 2007 NOAA Reports rated the eutrophic condition of Great Bay as “moderate,” and both the 1999 and the 2007 Reports predicted a “large deterioration” in the eutrophic conditions of the Bay in the future. See 2007 NOAA Report at 43-44; 1999 NOAA Report at 21. See also, NOAA, Estuarine Eutrophic Survey, Volume 3: North Atlantic Region (“1997 NOAA Report”) (1997) (A.R. L.29). The 2007 NOAA Report noted that nitrogen concentrations in Great Bay had increased over the past 20 years and eelgrass biomass had decreased by 70% over the past 10 years. 2007 NOAA Report at A16. In 2009, the Piscataqua Region

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Estuaries Partnership (“PREP”) observed that nitrogen and other signs of eutrophication in Great Bay had increased significantly, based on a comparison of data from 2001-2008 and monitoring data from 1974-1981. PREP concluded that “[t]here is consensus that the Great Bay Estuary is starting to experience the negative effects of excess nitrogen.” See Piscataqua Region Estuaries P’ship, State of the Estuaries 2009, at 13 (A.R. K.26). In 2009, the NHDES conducted an analysis of data from the Great Bay Estuary collected between 2000 and 2008, and proposed numeric water quality criteria for nitrogen to protect the designated uses of the Bay. See NHDES, Numeric Nutrient Criteria for the Great Bay Estuary (“Great Bay Nutrient Report”) (June 10, 2009) (A.R. K.14). NHDES explained that it developed these criteria because New Hampshire’s water quality standards contain only narrative criteria for nutrients to protect designated uses, which are difficult to apply for impairment and permitting decisions. Id. at 1. The Great Bay Nutrient Report concluded, among other things, that the waters of the estuary must meet a water quality threshold of no more than 0.25-0.30 mg/l TN to prevent the loss of submerged eelgrass, which provides critical habitat for fish and other aquatic life forms. 5 Id. NHDES’ Great Bay Nutrient Report was developed in consultation with and was reviewed by the PREP’s Technical Advisory Committee. Id. It was also subjected to public notice and comment before it was finalized, and NHDES received 135 comments from 12 entities, including Coalition communities. In the final report NHDES included a response to public comments. See id. at 74-84, and B-1 to B-4. In addition, in 2010, NHDES subjected the Report to a technical peer review by national experts through EPA’s Nutrient Scientific Technical Exchange Partnership and Support (N-STEPS) program. These reviews, conducted by scientists at Cornell University and the University of Maryland, generally affirmed the methodology and conclusions of the Report. See id. app. C. The Region’s Proposed Effluent Limitation for Nitrogen in the Newmarket Permit. On October 5, 2011, the Region issued a draft renewal NPDES permit for the Newmarket Plant proposing an effluent limitation on nitrogen for the first time. The Region proposed to set the nitrogen limit at 3.0 mg/l TN to protect the eelgrass

5

NHDES also determined that a slightly higher threshold of 0.45 mg/l TN is necessary to achieve desired levels of dissolved oxygen in the water, which is also critical to the health of the aquatic habitat and the survival of fish and other aquatic species. Great Bay Nutrient Report at 1.

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and aquatic habitat of the Lamprey River and the downstream waters of the Great Bay. In the Fact Sheet accompanying the draft permit, the Region explained: EPA has concluded that at existing levels, nitrogen in the Newmarket facility’s effluent discharge contribute to water quality violations at the point of discharge in the Lamprey River, as well as further downstream in Great Bay. EPA’s analysis of available information, including the NHDES report “Analysis of Nitrogen Loading Reductions for Wastewater Treatment Facilities and Non Point Sources in the Great Bay Estuary Watershed-Draft,” shows that the facility’s nitrogen discharge has a reasonable potential to cause or contribute to a violation of water quality standards and that a total nitrogen effluent limitation of 3 mg/l, coupled with significant reductions in nonpoint source discharges of nitrogen, is necessary to ensure compliance with water quality standards. Fact Sheet at 10. The Region further explained in detail the available scientific information on eutrophication of the Great Bay and Lamprey River and the basis for its assessment that the nitrogen effluent limitation in the Newmarket permit is necessary to achieve the State’s water quality standards. See Fact Sheet at 11-19. Public Comments. The Region provided an opportunity for public comment on the draft permit between October 5 and December 16, 2011, a total of over 60 days. 6 During the public comment period, the Region received written comments from nine interested parties, including the Town (the permittee) and the Coalition. Both the Town and the Coalition raised numerous objections to the proposed new nitrogen limit. Others, including the Conservation Law Foundation, the Nature Conservancy, and the Lamprey River Watershed Association, submitted written comments supporting the proposed nitrogen limit. The Town’s public comments acknowledged that the Great Bay is showing signs of impairment and that efforts should be made to reduce nitrogen to some degree. The Town, however, urged the Region to adopt a less stringent permit effluent limit of 8 mg/l TN as a seasonal average. See Response to Comments on Draft NPDES No. NH0100196, Town of Newmarket Wastewater Treatment Plant, Newmarket, NH (“RTC”) at 23 (Nov. 15, 2012) (A.R. B.1). The Town contended this would be adequate to bring nitrogen levels back to the levels of the 1990’s

6

The NPDES permitting regulations require at least a 30-day public comment period. See 40 C.F.R. § 124.10(b).

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when eelgrass in the Bay was healthy. Id. The Town also adopted the Coalition’s comments by reference. Id. at 30. The Coalition’s comments recognized that use impairments exist in the Great Bay but contended that the causes of the impairments are still under investigation and undetermined. See Proposed Newmarket Permit Comments of the Great Bay Municipal Coalition (“Coalition’s Comments”) at 3 (Dec. 15, 2011) (A.R. C.2); RTC at 54. The Coalition further argued that the proposed numeric nutrient criteria in the State’s Great Bay Nutrient Report are not scientifically defensible. Coalition’s Comments at 11-20. In addition to its substantive objections to the 3 mg/l TN Newmarket permit limit, the Coalition raised a number of procedural objections, including a complaint that it had been excluded from participation in the peer review of the Great Bay Nutrient Report. Id. at 1-10; RTC at 59. The Public Hearing. EPA held a public hearing on the draft Newmarket permit on November 30, 2011, at which fourteen individuals made oral comments on the record. See RTC at 143-71. Sean Grieg, the water and sewer superintendent for the Town, testified that meeting the 3 mg/l TN limit would cost the Town approximately $16 million in capital costs plus an increase of $265,000 per year for operation and maintenance, while meeting a limit of 8 mg/l TN (the Town’s preferred limit) would cost $12.5 million in capital costs plus an increase of
$230,000 per year for operation and maintenance. Id. at 143. Mr. Grieg agreed, however, that nitrogen discharges to the Great Bay need to be reduced: We have some areas of agreement. We agree that Great Bay is impaired and that the causes are many and complex. Nitrogen does need to be reduced to some degree. This is under review as part of the [Memorandum of Agreement] with the New Hampshire DES. We share a common goal to have a healthy Great Bay. It is very important to us. Id. at 144. Other commenters included John Hall, identifying himself as the water quality consultant to the Coalition. 7 Id. at 151-60. Mr. Hall alleged that there were flaws in the scientific analysis supporting the proposed nutrient criteria in the Great Bay Nutrient Report. Id. Fred Short, identifying himself as a research scientist at

7

John Hall is also the attorney for Petitioner. See Petition at 98.

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the Jackson Estuarine Lab on Great Bay, disagreed with Mr. Hall and supported the State’s work and conclusions. Id at 165-66. On November 5, 2012, NHDES granted state certification, pursuant to section 401 of CWA, 33 U.S.C. § 1341, that the proposed Newmarket permit contains conditions necessary to assure compliance with state water quality standards. 8 See Letter from Harry T. Stewart, Dir., Water Div., NHDES, to David M. Webster, Water Permits Branch Chief, U.S. EPA Region 1 (Nov. 5, 2012) (A.R. F.1). The Region’s Permit Decision and Response to Comments. On November 16, 2012, the Region issued its final permit determination along with a detailed, 177-page written response to public comments. The final permit imposes a permit effluent limitation of 3 mg/l TN on a seasonal average basis. See Authorization to Discharge Under the National Pollutant Discharge Elimination System, Town of Newmarket, NH, Permit No. NH010096, at 2-3 (Nov. 16, 2012) (A.R. A.1). The permit also includes a provision referencing the need to achieve nitrogen loading reductions from nonpoint sources in order to achieve water quality standards in the Lamprey River and specifying that collaboration with the State and other stakeholders, including certain specified steps, is required to accomplish that goal. Id. at 12. This provision includes a “reopener condition,” which provides: Following issuance of the final permit, EPA will review the status of the activities described above * * * at 12 month intervals from the date of issuance. In the event the [nonpoint source] activities * *

• are not carried out within the timeframe of this permit (5 years),
  EPA will reopen the permit and incorporate any more stringent total nitrogen limit required to assure compliance with applicable water quality standards. Id. The Region explained the reason for this provision in its Response to Comments: EPA does not dispute that the majority of the total nitrogen load into the Great Bay Estuary is from nonpoint sources, and it is for this

8

Under section 401(a) of the CWA, EPA may not issue an NPDES permit to a proposed discharger until the state in which the discharger is located “certifies” that the permit contains conditions necessary to assure compliance with the state’s water quality standards. CWA § 401(a)(1), 33 U.S.C. § 1341(a)(1); 40 C.F.R. §§ 124.53(a), .55(a)(2). Alternatively, the state may choose to waive such certification. See CWA § 401(a)(1), 33 U.S.C. § 1341(a)(1); 40 C.F.R. § 124.53(a).

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reason (i.e., to provide NHDES and the Town with the framework and opportunity to pursue nonpoint source reductions) that EPA has opted for a nitrogen effluent limit of 3.0 mg/l rather than a more stringent limit equal to the numeric instream threshold that EPA has determined will attain and maintain applicable water quality criteria and fully protect designated uses. RTC at 28. Petition for Review. On December 14, 2012, the Coalition filed its Petition challenging the permit’s effluent limitation for total nitrogen and seeking review by the Board and remand of the permit. 9 The Region filed a response to the Petition on February 8, 2013. See Respondent Region 1’s Memorandum in Opposition to the Petition for Review (Feb. 8, 2013) (“Region’s Response”). The Town did not file a petition for review or join the Coalition’s petition. The Board also admitted two amicus briefs to the record on appeal, one filed by the NHDES and the other by CLF. See Amicus Brief of N.H. Department of Environmental Services (“NHDES Amicus Brief”); Brief of Conservation Law Foundation, Town of Newington, and New Hampshire Audubon in Response to Great Bay Municipal Coalition’s Petition for Review (“CLF Amicus Brief”). With the permission of the Board, the Coalition filed a reply to the Region’s Response on March 1, 2013. See Reply to EPA Region 1’s Memorandum in Opposition to the Petition for Review

9

In the alternative, the Coalition seeks a stay of the Board’s proceedings until EPA Headquarters determines whether to conduct an updated peer review of the 2009 Numeric Criteria Document and a decision is made in the Coalition’s FOIA appeal regarding documents it requested from EPA Headquarters and Region 1. Petition at 97. The Coalition has failed to persuade the Board that there is sufficient justification for further delaying the completion of this permit to await the outcome of either the FOIA appeal or the request for an updated peer review of the State’s Great Bay Nutrient Report. The Coalition cites nothing more than its own speculation that these requests will lead to the discovery of new information that will change or have a material bearing on the issues presented in this appeal. The Board hereby denies the Coalition’s request for a stay on these grounds. The Board’s consideration of the Petition for review is limited to the administrative record certified by the Region at the conclusion of its current decisionmaking process on the Newmarket permit renewal. The Coalition also sought a stay of the Board’s proceedings in this matter until a decision was made on the Coalition’s “mandatory duty” suit in the U.S. District Court for the District of Columbia. Id. The District Court dismissed the Coalition’s suit on July 30, 2013. See City of Dover v. U.S. EPA, No. 12-CV-01994-JDB (D.D.C. July 30, 2013). The request for a stay is therefore moot.

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(“Coalition’s March 1 Reply”). Also on March 1, 2013, the Coalition filed a motion seeking oral argument in this matter. 10 See Motion for Oral Argument. On March 8, 2013, also with the Board’s permission, the Coalition filed a consolidated reply to the NHDES and CLF Amicus briefs. Petitioner’s Response to Amicus Briefs of New Hampshire Department of Environmental Services and Conservation Law Foundation, Town of Newington, and New Hampshire Audubon. On March 15, 2013, the Region filed a sur-reply to the Coalition’s March 1 Reply. See Respondent EPA’s Sur-Reply. On August 28, 2013, the Coalition filed a Motion to Dismiss its Petition, citing plans for a new peer review of NHDES’ Great Bay Nutrient Report. The Board denied that motion on September 24, 2013. The Board’s September 24, 2013 Order Denying Motion to Dismiss is attached as an appendix to today’s decision.11 VI. STATUTORY AND REGULATORY BACKGROUND In 1972, Congress enacted the CWA “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” CWA § 101(a), 33 U.S.C. § 1251(a). To achieve this objective, the Act prohibits the discharge of pollutants into the waters of the United States unless such discharge complies with

10

Upon consideration, the Board has determined that, given the substantial amount of briefing already filed in this matter, oral argument will not be of further material assistance to the Board. Accordingly, the Coalition’s motion for oral argument is denied. 11

In its Order, the Board stated that it would consider several factors when considering whether to grant or deny a motion to dismiss, including: (1) whether the motion is opposed; (2) whether the motion is untimely in light of the stage of the proceedings; (3) whether the Board is likely to have to address the issues presented in any event; (4) whether a party may be seeking dismissal for improper purposes such as evading Board review or improperly attempting to manipulate the administrative and judicial review system; and (5) other factors as justice may require. See Order Denying Motion to Dismiss at 8. The Board’s rationale for denying the Coalition’s motion included the following: (1) the Region has opposed the motion; (2) the motion was filed eight months after the Coalition filed its petition and the Board had already invested considerable resources in reviewing the legal and factual arguments; (3) the Coalition made clear its intent to continue litigating the key issues raised to the Board; (4) a Board decision on the merits of the key issues could provide guidance and lessen uncertainty as to how EPA will proceed with regard to NPDES permits for other Great Bay communities; and (5) a Board decision could provide helpful analysis for the courts’ review of the complex scientific issues in the likely event that the Coalition brings this issue to the courts for resolution. Id. at 9-11.

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a CWA permit. CWA § 301(a), 33 U.S.C. § 1311(a). The CWA permitting program relevant to the instant case is the NPDES program, set forth at section 402 of the CWA, 33 U.S.C. § 1342, and implementing regulations EPA promulgated at 40 C.F.R. part 122. NPDES permits typically contain provisions that address two central and interrelated CWA elements: (1) water quality standards, which generally are promulgated by states and approved by EPA and (2) effluent limitations, which are established by EPA on an industry-specific basis or developed in the context of individual permit decisions. See CWA §§ 301, 303, 304(b), 33 U.S.C. §§ 1311, 1313, 1314(b); 40 C.F.R. pts. 122, 125, 131. The CWA prohibits EPA from issuing a permit that does not “insure” compliance with the water quality standards of both the state where the discharge originates and all affected states. See CWA § 401(a)(1), (2), 33 U.S.C. § 1341(a)(1), (2). State water quality standards are comprised of three distinct components: (1) one or more “designated uses” (e.g., public water supply, agriculture, primaryor secondary-contact recreation such as swimming or fishing) for each water body or water body segment in the state; (2) “water quality criteria” expressed in (a) numerical concentration levels for short (“acute”) or longer (“chronic”) exposure times and/or (b) narrative statements specifying the amounts of various pollutants that may be present in the water without impairing the designated uses; and (3) an “antidegradation” provision, which prohibits discharges that would degrade water quality below that necessary to maintain the “existing uses” (as opposed to “designated uses”) of a water body. CWA § 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 131.10-.12; see in re Teck Cominco Alaska, Inc., 11 E.A.D. 457, 464 (EAB 2004). States are authorized to establish either numeric or narrative water quality criteria, or both. See 40 C.F.R. §§ 131.3(b), .11(b). Permit effluent limitations control pollutant discharges into the waters of the United States by restricting the types and amounts of particular pollutants a permitted entity may lawfully discharge. CWA § 304(b), 33 U.S.C. § 1314(b); 40 C.F.R. § 122.44. Effluent limitations are either “technology-based” or “water quality-based,” whichever is more stringent. CWA §§ 301(b)(1)(C), 302, 33 U.S.C. §§ 1311(b)(1)(C), 1312. Technology-based effluent limitations are generally developed on an industry-by-industry basis and establish a minimum level of treatment that EPA has determined is technologically available and economically achievable for facilities within a specific industry. 12 CWA §§ 301(b),

12

In some cases, no industry-specific effluent limitations guidelines exist. In those instances, permit issuers must use their “best professional judgment” to establish

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304(b), 33 U.S.C. §§ 1311(b), 1314(b); 40 C.F.R. pt. 125, subpt. A; see 40 C.F.R. pts. 405-471 (effluent limitations guidelines for various point source categories). Water quality-based effluent limitations (“WQBELs”), on the other hand, are designed to ensure that state water quality standards are met regardless of the decisions made with respect to technology and economics in establishing technology-based limits. WQBELs, which are at issue in this appeal, are derived on the basis of the second component of water quality standards; i.e., the numeric or narrative water quality criteria for various pollutants established for particular water bodies. Under the federal regulations implementing the NPDES program, permit issuers must determine whether a given point source discharge “causes, has the reasonable potential to cause, or contributes to” an exceedance of the narrative or numeric criteria for various pollutants set forth in state water quality standards. 40 C.F.R. § 122.44(d)(1)(ii). This regulatory requirement, sometimes described as the “reasonable potential analysis,” provides in full: When determining whether a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative or numeric criteria within a [s]tate water quality standard, the permitting authority shall use procedures [that] account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant or pollutant parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water. Id. If a discharge is found to cause, have the reasonable potential to cause, or contribute to such an exceedance, the permit writer must calculate WQBELs for the relevant pollutants. Id. § 122.44(d)(1)(i), (iii)-(vi). Where state water quality standards are based upon narrative (rather than numeric) criteria, the regulations prescribe three options that the permit writer may use to determine the appropriate effluent limitations for particular discharge sources. See id. § 122.44(d)(1)(vi)(A)-(C). As relevant here, the first option authorizes the permitting authority to:

appropriate technology-based effluent limitations on a case-by-case basis. 402(a)(1), 33 U.S.C. § 1342(a)(1); 40 C.F.R. §§ 122.44, 125.3.

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Establish effluent limits using a calculated numeric water quality criterion for the pollutant which the permitting authority demonstrates will attain and maintain applicable narrative water quality criteria and will fully protect the designated use. Such a criterion may be derived using a proposed State criterion, or an explicit State policy or regulation interpreting its narrative water quality criterion, supplemented with other relevant information

• • *.
    Id. § 122.44(d)(1)(vi)(A).
    New Hampshire has not developed final statewide or site-specific numeric water quality standards for nitrogen. It has, however, developed narrative standards. In particular, New Hampshire’s state water quality standards, as pertinent to this case, classify the Lamprey River at the point of discharge from the Newmarket Plant as a “Class B” water body and designate the uses thereof as, among other things, fishing, swimming, and other recreational purposes and as habitat for aquatic life. See N.H. Rev. Stat. Ann. § 485-A:8 ¶ II. Waters in this category “shall have no objectionable physical characteristics.” Id. In addition, New Hampshire water quality regulations contain a narrative nutrient criterion prohibiting instream concentrations of nitrogen in Class B waters “that would impair any existing or designated use, unless naturally occurring” and specifies that discharges of nitrogen that …2633 tokens truncated…ate that the Region Clearly Erred or Abused Its Discretion in Selecting an Instream Water Quality Target of 0.3 mg/l TN for the Newmarket Permit

The Act requires that NPDES permits include effluent limitations as necessary to insure compliance with State water quality standards. CWA
§§ 301(b)(1)(C), 402(a)(1), (2); 33 U.S.C. §§ 1311(b)(1)(C), 1342(a)(1), (2). The implementing regulations specify that this requirement includes “narrative” State water quality standards. 40 C.F.R. § 122.44(d)(1)(i). The applicable State water quality standards in this case are the State of New Hampshire’s narrative standards prohibiting instream concentrations of nitrogen that would impair the existing and designated uses of the Lamprey River for fishing, swimming and other recreation, and as aquatic habitat, or encourage cultural eutrophication. N.H. Rev. Stat. Ann.
§ 485-A.8 ¶ II., N.H. Code Admin. R. Ann. DES 1702.11, 1703.01, 1703.14 (2013). Where a state has promulgated only narrative water quality standards, the first task of the permit writer is to determine an appropriate instream numeric water quality target. As the D.C. Circuit explained in American Paper Institute v. U.S. EPA, 996 F.2d 346 (D.C. Cir. 1993), As long as narrative criteria are permissible * * * and must be enforced through limitations in particular permits, a permit writer will inevitably have some discretion in applying the criteria to a particular case. The general language of narrative criteria can only take the permit writer so far in her task. Of course, that does not

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mean that the language of a narrative criterion does not cabin the permit writer’s authority at all; rather, it is an acknowledgment that the writer will have to engage in some kind of interpretation to determine what chemical-specific numeric criteria–and thus what effluent limitations–are most consistent with the state’s intent as evinced in its generic standard. 996 F.2d at 351 (emphasis added); see also In re Upper Blackstone Water Pollution Abatement Dist., 14 E.A.D. 577, 627-28 (EAB 2010) (citing Am. Paper, 996 F.2d at 351); In re San Jacinto River Auth., 14 E.A.D. 688, 696 (EAB 2010) (discussing permit issuer’s discretion in determining permit conditions necessary to implement state narrative water quality standards). a.

The Region’s Consideration of the State’s Proposed Nutrient Criteria Was in Accordance with EPA Regulations

EPA regulations specify that, when interpreting narrative state water quality standards, permitting authorities may: Establish effluent limits using a calculated numeric water quality criterion for the pollutant which the permitting authority demonstrates will attain and maintain applicable narrative water quality criteria and will fully protect the designated use. Such a criteria may be derived using a proposed State criterion, or an explicit State policy or regulation interpreting its narrative water quality criterion, supplemented with other relevant information

• • *.
    40 C.F.R. § 122.44(d)(1)(vi)(A) (emphasis added).
    The plain language of this regulation (“[numeric] criteria may be derived using a proposed State criterion”) authorizes the Region to consider the numeric water quality criteria for nitrogen proposed by the State in the Great Bay Nutrient Report in calculating a numeric water quality target for purposes of the Newmarket permit. NHDES expressly stated in its Report that it developed the proposed numeric criteria because of the difficulty in applying narrative standards for impairment and permitting decisions and that it would first use the proposed criteria “as interpretations of the water quality standards narrative criteria” for its CWA section 305(b) assessments. 15 Great Bay Nutrient Report at 1.

15

CWA section 305(b), 33 U.S.C. § 1315(b), requires that states prepare biennial reports describing the condition of water quality in all navigable waters in the state and an

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The Coalition objects to the Region’s consideration of the State’s proposed nutrient criteria because the State has not formally promulgated or sought EPA approval for establishing those criteria as State water quality standards. See Petition at 2, 46-49. The language of the regulation, however, does not limit the permitting authority to considering only approved criteria promulgated as standards, but more broadly permits consideration of a state’s “proposed” criteria or “interpretation,” as well as “other relevant information.” The Board finds no basis under the express language of this regulation for the Coalition’s objection to the Region’s consideration of the State’s proposed nutrient criteria from the Great Bay Nutrient Report in setting the water quality target for nitrogen for purposes of the Newmarket permit. The Board considers the Coalition’s further objection that the Region should have engaged in rulemaking before considering the State’s proposed nutrient criteria in Part VII.B below. b. There is Substantial Support in the Record for the Scientific Validity of the State’s Great Bay Nutrient Report The Coalition contends that the Region should not have relied on the proposed nutrient criteria in the Great Bay Nutrient Report because the State’s analysis was scientifically flawed. The Board first reviews the record in this case to determine whether it provides adequate scientific support for the methodology and conclusions of the State’s Report. Most significantly, the Board examines the record for support for NHDES’ conclusion that a water quality threshold of no more than 0.25-0.30 mg/l TN is necessary to protect eelgrass habitat in the Lamprey River and the Great Bay Estuary. See Great Bay Nutrient Report at 1. The Region gave significant consideration to that finding, along with other information, in selecting an instream water quality target of 0.3 mg/l TN for the Newmarket Permit, as discussed further below. See Fact Sheet at 26-27. 16 As the Region and the State explained, protection of the eelgrass habitat is critical to the “aquatic life support” designated use of the Lamprey River and the Great Bay Estuary. The health of the aquatic habitat is essential to the health of the fish and other aquatic species, which

analysis of the extent to which navigable waters provide for the protection and propagation of a balanced population of wildlife and allow for recreational activities. 16

The Region also considered NHDES’ recommended criterion of 0.45 mg/l TN for maintaining dissolved oxygen levels. See Fact Sheet at 27. The Board focuses here on NHDES’ more stringent proposed criterion of 0.25-0.30 mg/l TN for protection of eelgrass as the stricter limit is controlling for purposes of determining the final effluent limitation.

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in turn support the designated uses of the receiving waters for human activities such as fishing and swimming. See Fact Sheet at 14; Great Bay Nutrient Report at 1. Peer Reviews. The State’s Great Bay Nutrient Report was subjected to independent peer review through EPA’s Nutrient Scientific Technical Exchange Partnership and Support program. See Great Bay Nutrient Report app. C (attachs. A & B); RTC at 10-11. The peer reviews were performed by two independent experts on the effect of nutrients on estuaries, Dr. Robert Howarth of Cornell University (A.R. M.20) and Dr. Walter R. Boynton of the University of Maryland (A.R. M.1). 17 See Great Bay Nutrient Report app. C. Both peer reviewers supported the validity of the State’s methodology and conclusions. Dr. Howarth’s peer review report states: The Great Bay nutrient criteria report was a joy to read and provides an excellent basis for protecting this estuarine ecosystem from nutrient pollution. While many states have narrative nutrient criteria, very few have addressed the difficult challenge of establishing numeric criteria. I applaud the State of New Hampshire for providing some excellent leadership in this area. The reliance on a weight-of-evidence approach, using several approaches and sources of information, is a strong point of the report. Of the approaches analyzed, some worked better than others. For example, the use of the health of the benthic invertebrate community proved problematic, while relating eelgrass habitat suitability to nitrogen through a relationship to water clarity and penetration worked very well. Similarly, the use of continuous oxygen data proved much more useful for setting nitrogen criteria than did the use of spot sampling for oxygen. The Great Bay report did a beautiful job of explaining the rationale behind each of the approaches tested, as well as in explaining the reasons for using some over others in setting numeric nitrogen criteria. I agree with the report’s use of low dissolved oxygen and loss of eelgrass habitat as the two most sensitive and appropriate approaches for setting numeric criteria. Assumptions in the Great Bay report are well explained and generally well supported by appropriate literature and reasoning. The Great Bay estuary is surprisingly rich in data on nutrient concentrations, dissolved oxygen concentrations, chlorophyll 17

The peer reviews conducted by Drs. Howarth and Boynton are included as Attachments to Appendix C of the Great Bay Nutrient Report; they are also identified separately in the record as A.R. M.20 (Howarth) and A.R. M.1 (Boynton).

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levels, and distribution of seagrasses and macro-algae, and these data were well used in this report. Robert W. Howarth, Review of “Numeric Nutrient Criteria for the Great Bay Estuary” at 1-2 (June 2, 2010) (emphases added). Dr. Boynton provided a similarly supportive assessment of the State’s analysis in the Great Bay Nutrient Report: The author makes clear at the start that the development of the TN criteria uses a weight of evidence approach. Given the “state of the art” in estuarine science I think this is a very reasonable approach. In addition, the author used multiple analyses in many portions of this work and that provides enhanced confidence in the results. Simply said, this is a good approach to use in systems as complicated and variable as estuaries. The analysis is very empirical. That is, it is based on local measurements * * * quite a pile of local measurements made at many sites during a 9 year period. In addition, there is good reference to the appropriate scientific literature and to adjacent estuarine areas. I think this was a well-grounded analysis.

---

I was very pleased to see that a conceptual model was used to guide the development of these analyses. What I mean here is that there was a mechanistic basis for the variables used in these analyses. The author used many water quality measurements to develop regression models between TN and chlorophyll-a, DO [dissolved oxygen] and water clarity. In addition, continuous monitors were used to estimate DO impairments and finally, relationships between water quality and water clarity were quantified based on light attenuation measurements via in-situ sensors and hyperspectral imagery. All solid approaches. Walter R. Boynton, Review of “Numeric Nutrient Criteria for the Great Bay Estuary” at 1-2 (May 29, 2010) at 1-2 (emphases added). Other Expert Evaluations. In addition to the formal peer review reports, the record contains written evaluations of the State’s Great Bay Nutrient Report by other experts, almost all of whom supported the methodology and conclusions of the Report. For example, EPA Region 1 biologist Matthew Liebman provided the following assessment of the State’s study:

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I like the overall weight of evidence approach, and that they are applying a conceptual model that tests whether there is a dose response relationship in the data. And, most importantly, they find secondary, or independent, impacts from increasing concentrations of nutrients. These secondary impacts are independently related to use impairments. Thus, they are following a sound scientific approach to determine nutrient and chlorophyll thresholds above which impairments are likely to occur. E-mail from Matthew Liebman, Region 1, to Alfred Basile, Phil Colarusso, David Pincumbe, and Jean Brochi, U.S. EPA Region 1 (Nov. 21, 2008, 01:11 EST) (A.R. H.72). 18 Similarly, Dr. Ivan Valiela and Dr. Erin Kinney of Woods Hole Environmental Associates, reviewing the Great Bay Nutrient Report at the request of Conservation Law Foundation, also provided a supportive evaluation: We found the NHDES Numeric Nutrient Criteria report to be a well organized and thorough summary of the available nutrient and water quality data for Great Bay. While we would have preferred to see a watershed nutrient load-based approach, as this would provide a better basis for interpretations and comparisons of a variety of landderived * * * nutrient sources and drivers of eutrophication, it is our opinion that the use of available data on concentrations was appropriate and was strengthened by using multiple lines of evidence to arrive at the numeric nutrient criteria. Letter from Dr. Ivan Valiela & Dr. Erin Kinney, Woods Hole Envt’l Assocs., to Mr. Tom Irwin, CLF (July 28, 2011) (A.R. H.13). 19 Additionally, during the public hearing on the Newmarket permit, Dr. Fred Short, identifying himself as “a research scientist at the Jackson Estuarine Lab on

18

The Region cites this language in its Response to Comments, see RTC at 10-11 n.11, but incorrectly attributes the language to a 2010 technical memorandum also authored by Matthew Liebman. See Matthew Liebman, Review of: Numeric Nutrient Criteria for the Great Bay Estuary, in Light of Comments made by John C. Hall and Thomas Gallagher (Sept.1, 2010) (A.R. M.21) (supporting analysis in Great Bay Nutrient Report and suggesting improvements). 19

The review by Drs.Valiela and Kinney references the permit for the Town of Exeter, New Hampshire’s wastewater treatment plant [a previously issued EPA NPDES permit], and was submitted by CLF with its comments on both the Exeter and Newmarket draft permits.

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Great Bay,” stated that “NHDES has done a fabulous job of looking at all the data that we have on the bay” and that “what EPA is putting forward comes from DES and it’s what the data says, what the results say.” RTC at 165-66. In contrast to the favorable evaluations described above, members of the Coalition and its consultants provided public comments that were critical of the Great Bay Nutrient Report and NHDES’ proposed nutrient criteria. For example, John Hall, identifying himself as “the water quality consultant” to the Coalition, objected that there was not an adequate scientific basis for the Report’s conclusion. See id. at 151-59. Mr. Hall’s comments raised many of the same scientific criticisms that are identified in the Petition. Id. The record also includes a technical memorandum to John Hall from Thomas W. Gallagher and Christhian Mancilla of Hydroqual Environmental Engineers and Scientists, titled: “Review of New Hampshire DES Total Nitrogen Criteria Development for the Great Bay Estuary” (January 10, 2011) (“Hydroqual Memo”), which identifies alleged data inconsistencies in NHDES’ conclusions and proposed nutrient criteria. See A.R. H.4. The Hydroqual Memo concluded that “[a]s a consequence of this analysis, total nitrogen load reductions to Great Bay will not substantially improve the water column transparency.” Hydroqual Memo at 5. The Region’s Consideration of the Great Bay Nutrient Report in the Newmarket permit proceedings. The Region provided a detailed explanation and justification for its consideration of the State’s Great Bay Nutrient Report in its Response to Comments on the Newmarket permit, explaining: EPA discerned ample reason to treat the NHDES Great Bay Nutrient Report as relevant and useful technical information for NPDES permitting purposes and for identifying protective instream thresholds for nitrogen, which must be calculated in order to implement New Hampshire’s narrative nutrient criterion. In EPA’s and other experts’ estimation, NHDES performed a disciplined and reasonable investigation of correlations of water quality indicators that would be expected under its conceptual eutrophication model, and ultimately arrived at numerical thresholds that would achieve the narrative nutrient criterion, and would protect primary contact recreation and aquatic life uses * * *. The proposed water quality thresholds were developed with input from a technical advisory committee. NHDES accepted and responded to comments on the draft thresholds. The thresholds were, moreover, peer reviewed through EPA’s Nutrient Scientific Technical Exchange Partnership and Support (N-Steps) program, receiving positive reviews from two nationally recognized nutrient experts. (Boynton, 2010; Howarth, 2010). The peer reviewers specifically cited to the comprehensiveness and clarity of the weight-of-evidence approach

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used to develop the proposed numeric thresholds as well as the vast quantity of site-specific data available and utilized in the analyses *

• • Additional comments by experts in the field were submitted on
    the draft permit and were generally supportive of the NHDES thesholds. (Valiela and Kinney, 2011). Finally, EPA independently reviewed the data and analyses as sources for interpretation of the State’s narrative water quality standards, consistent with our obligation under 40 C.F.R. § 122.44(d)(1)(vi). RTC at 10-11 (footnotes omitted). In addition to the State’s Great Bay Nutrient Report, the Region also considered EPA’s Nutrient Criteria Technical Guidance Manual for Estuarine and Coastal Marine Waters in determining an appropriate water quality target for nitrogen. See Office of Water, U.S. EPA, EPA-822-B-01-003, Nutrient Criteria Technical Guidance Manual, Estuarine and Coastal Marine Waters (Oct. 2001) (A.R. M.12); Fact Sheet at 26. The Region also considered a Massachusetts Department of Environmental Protection determination that TN levels for the protection of eelgrass habitats should be less than 0.39 mg/l and ideally less than 0.30 mg/l. See Brian L. Howes, Roland Samimy & Brian Dudley, Massachusetts Estuaries Project Site-Specific Nitrogen Thresholds for Southeastern Massachusetts Embayments: Critical Indicators, Interim Report 19-24 (2003) (A.R. L.21); Fact Sheet at 26; RTC at 11 n.12; Region’s Response at 50-52. Overall, the Board finds that the record provides substantial support for the scientific validity of the NHDES Great Bay Nutrient Report and the Region’s consideration of that report and other available information in setting a water quality target of 0.3 mg/l TN for the Newmarket permit. While the record contains comments from the Coalition and its consultants that are critical of the State’s conclusions, the vast majority of the expert evaluations in the record are supportive of the State’s methodology and conclusions. The Board considers next the Petition’s specific allegations of scientific errors in the Great Bay Nutrient Report and the Region’s consideration of that report in the Newmarket permit proceedings. c. The Coalition Has Failed to Demonstrate That the Region Clearly Erred or Abused Its Discretion by Relying on Allegedly Scientifically Erroneous Conclusions in the Great Bay Nutrient Report The Petition alleges that there were numerous scientific errors in the methodology and conclusions of the State’s Great Bay Nutrient Report and therefore in the Region’s consideration of that report to establish an instream water quality target of 0.3 mg/l TN. Specifically, the Coalition asserts that: (a) nitrogen

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control will not achieve transparency targets due to naturally occurring “color” and turbidity, Petition at 57-62; (b) Great Bay is not a “transparency limited system,” id. at 62-67; (c) Great Bay is not confirmed to be a macroalgae impaired system, id. at 67-72; (d) EPA improperly ignored the significant impact the 2006 extreme weather had on the data sets, id. at 72-74; (e) EPA applied an incorrect return frequency to determine the proposed limits, id. at 75-77; (f) nitrate levels in Great Bay are not at toxic levels leading to eelgrass decline, id. at 77-79; and (g) assuming eelgrass are impaired by nitrogen, EPA is regulating the wrong pollutant form; it should be regulating nitrate not TN, id. at 79-82. The Petition further alleges that the Region ignored relevant findings of EPA’s Science Advisory Board, id. at 8991, and that EPA’s action “fails the Daubert Test,” id. at 91-95. The Petition’s specific allegations of scientific error are largely based on alleged inconsistencies of certain data with the State’s and the Region’s conclusions. For example, the Petition asserts that “[p]erhaps the single most important scientific error associated with the development of the numeric criteria was that both EPA and DES ignored repeated expert determinations that Great Bay proper is not a transparency limited system because eelgrass are able to get sufficient light over the tidal cycle.” Id. at 63. To support this contention, the Coalition points out that eelgrass has rebounded in some areas of the Bay and that areas with poor water transparency are sometimes able to support eelgrass. See id. at 62-67. In its Response to Comments, the Region explained that such alleged inconsistencies in the data must be viewed in light of the long-term trends: Many of the Coalition’s criticisms of the NHDES Great Bay Nutrient Report are based on short-term data or on subsets of the dataset that do not exhibit the same relationships shown in the longterm data. Because the NHDES approach is based on the central tendencies of the long-term data set, it is to be expected, based on normal variability that there would be subsets of the data that do not show the same relationships seen in the long term data. Therefore, such comparisons are not persuasive in showing the long-term relationships are invalid.

---

In EPA’s judgment, NHDES employed data in a transparent and rigorous manner over the course of developing their water quality thresholds. NHDES used data collected during 2000 to 2008 throughout the estuary and explored correlations, primarily using the median values for water quality parameters. NHDES used this approach to mute variability in datasets and improve correlation.

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NHDES selected this approach with the full understanding that spatial and temporal variability is lost, but concluded that on balance the advantages outweigh the disadvantages. (For example, NHDES noted that month-to-month variability is typically confounded by the complexity of phytoplankton dynamics.) (NHDES, 2009a). The same is true regarding eelgrass dynamics, specifically that nitrogen concentration changes and eelgrass responses do not occur on the same time scale given the complexity of eelgrass dynamics, so evaluations of short-term data comparing the two is not meaningful. Using data collected over a long time scale, with numerous data points, compensates for the lag time between cause and effect, presenting a clearer picture of general long-term relationships and conditions. RTC at 15-16 (footnote omitted). The Region also disagreed with the Coalition’s contention that decreasing transparency in the waters of the Great Bay is not causing or contributing to eelgrass loss: EPA disagrees with the commenter’s assertion relative to the role of transparency on eelgrass loss. Evidence of decreasing trends in transparency is provided by documented increases in factors that reduce transparency. The PREP [Piscataqua Region Estuaries Partnership] 2009 State of the Estuaries Report showed long-term increasing trends in [total suspended solids] and chlorophyll-a (major components that result in decreased transparency) from sampling at Adams Point during the period of eelgrass decline (PREP, 2009a at 13). * * * The more recent PREP data indicate that chlorophyll-a concentrations may be leveling off (no statistically significant trend when data through 2011 are considered) but that there have been significant increases in macroalgae and epiphytes (PREP, 2012 at NUT 3b-2). (See also Short, 2011). Macroalgae effects [sic] eelgrass not only through direct smothering and shading but also by contributing to increased turbidity from particulate organic matter in the water column. NHDES has shown that light attenuation in the Great Bay estuary is more strongly correlated with plant/organic matter in the water than any other factor (NHDES, 2012a). Id. at 58; see also id. at 43-44 (explaining in great detail the relationship between the transparency data and other factors, and the reasoning behind the Region’s conclusion that nitrogen reductions are needed to prevent eelgrass loss). The Region also addressed the Coalition’s arguments that nitrate levels in the Great Bay are not at toxic levels and that naturally occurring color and turbidity in the tidal rivers (including the Lamprey River) will prevent reestablishment of healthy eelgrass habitat even if nitrogen is reduced. The Region explained:

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As to nitrogen toxicity, EPA has explained that elevated concentrations of nitrate and ammonia have been shown to have direct impacts on eelgrass by disrupting its normal physiology. Fact Sheet at 15. This disruption of normal physiology can lead to reduced disease resistance and mortality.

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[As to color] Estuarine systems have natural background levels of color and turbidity that are fully compatible with a healthy ecosystem that supports eelgrass habitat. The commenter has presented no persuasive evidence to indicate that color has increased over time. Id. at 44-45. In addition, the Region addressed the Coalition’s argument that TN is the wrong form of nitrogen to control, and instead permit limits for nitrogen should focus exclusively on “dissolved inorganic nitrogen”: EPA also disagrees that limits should be in terms of dissolved inorganic nitrogen rather than total nitrogen. The NHDES Great Bay Nutrient Report indicates that “Nitrogen cycling results in constant shifts between the different forms of nitrogen. Setting criteria for dissolved inorganic nitrogen is problematic because the concentrations of this species [sic] is drawn down or fully depleted during periods of high productivity. Therefore, DES feels that total nitrogen is a more stable indicator to use for the water quality criteria. In guidance for establishing nutrient criteria for estuaries, EPA identified total nitrogen as the causal variable of specific concern.” (NHDES, 2009 at 79 (citing EPA, 2001)). In addition, recent research has documented that forms of nitrogen considered unavailable for plant growth are far more bioreactive than previously thought, further supporting the need to control total nitrogen rather than just DIN [dissolved inorganic nitrogen] * * * Consistent with recommendations in [the] EPA Nutrient Criteria Manual, because of the recycling of nutrients in the environment, it is best to limit total concentrations (i.e. total nitrogen) as opposed to fractions of the total. Id. at 58-59. Finally, the Region addressed the Coalition’s comments that the Region improperly considered data from “extreme wet weather periods” by explaining that:

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[I]gnoring [wet weather] years is not appropriate because it underestimates the nitrogen contribution from the tributaries. Further, water quality standards are not just intended to be met under average rainfall years. EPA also notes that rainfall data presented by the Coalition show an increasing trend in the amount of rainfall. Id. at 100. The Region agreed that much of the increase in TN levels between 2002 to 2008 was due to increased rainfall but explained:
[T]his is part of natural variability in weather patterns, which do have a significant effect on nitrogen loadings and responses, and that is why the NHDES analyses supporting the proposed nitrogen thresholds are based on evaluations of long-term data sets. Also as indicated in the Fact Sheet (page 12) there has been a long term increase in Great Bay concentrations of dissolved inorganic nitrogen, a major component of total nitrogen, of 44 percent in the past 28 years. Id. at 105. The Board concludes that the Region responded to the scientific arguments presented in the Petition and that the Region’s responses to the Coalition’s arguments on all these issues are rational, soundly based in the record, and persuasive. The Coalition has failed to persuade the Board that there is any clear error or abuse of discretion in the Region’s responses. At most, the Coalition has demonstrated a difference of scientific opinion between the Coalition and the Region. This is insufficient to demonstrate clear error or an abuse of discretion as a matter of law. See In re Upper Blackstone Water Pollution Abatement Dist., 14 E.A.D. 577, 608 (EAB 2010) (explaining that on technical issues, the Board will defer to the permit issuer where the Board “is satisfied that the permit issuer gave due consideration to comments received and adopted an approach” that is “rational and supportable.”); In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 510 (EAB 2006) (“‘[W]hen issues raised on appeal challenge a Region’s technical judgments, clear error or a reviewable exercise of discretion is not established simply because petitioners document a difference of opinion or an alternative theory regarding a technical matter.’”) (quoting In re NE Hub Partners, L.P., 7 E.A.D. 561, 567 (EAB 1998), rev. denied sub nom. Penn Fuel Gas, Inc. v. EPA, 185 F.3d 862 (3d Cir. 1999)); see also In re Envotech, L.P., 6 E.A.D. 260, 284 (EAB 1996) (stating that the Board generally defers to a Region’s determination of issues that depend heavily upon the Region’s technical expertise and experience). Moreover, the weight of the scientific evidence in the record clearly supports the Region’s determination that the 0.3 mg/l instream target for the Newmarket permit is necessary to achieve the State’s narrative water quality standards for nitrogen.

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d. The Coalition Failed to Demonstrate That the Region Relied on Analytical Methodologies That the EPA Science Advisory Board Has Determined to Be Unreliable The Petition asserts that the Region “ignored relevant Science Advisory Board [“SAB”] findings that confounded correlations are not a scientifically defensible basis for criteria assessment.” Petition at 89. The Petition does not identify the “relevant [SAB] findings,” but the Board understands from the record that this most likely refers to the recommendations provided by the EPA SAB on a draft EPA guidance concerning empirical methods for deriving nutrient criteria. See Letter from Dr. Deborah L. Swackhamer, Chair, SAB, to Lisa P. Jackson, EPA Adm’r, (Apr. 27, 2010) (“SAB Recommendations”) (A.R. M.23). EPA issued final guidance incorporating many of the SAB’s recommendations in November 2010 under the title Using Stressor-Response Relationships to Derive Numeric Nutrient Criteria. See RTC at 76; Office of Science and Tech., U.S. EPA, Using StressorResponse Relationships to Derive Numeric Nutrient Criteria (Nov. 2010) (“Stressor-Response Guidance”) (A.R. M.4). By way of background, the Stressor Response Guidance explains that EPA recommends three types of empirical analyses for developing numeric nutrient criteria: (1) reference condition approaches, (2) mechanistic modeling, and (3) stressor-response analysis. The Guidance addresses the third type of analysis, which uses statistical correlations to analyze the effects of nutrient “stressors” (nitrogen and phosphorus) on environmental “response” variables (e.g. algal growth and water clarity) for particular water bodies. This type of analysis is used when data are available to accurately estimate a relationship between nutrient concentrations and a response measure that is directly or indirectly related to a designated use of the waterbody. RTC at 76. The site-specific data analysis in the State’s Great Bay Nutrient Report was a stressor-response type of analysis. The SAB’s recommendations to EPA on the draft Stressor-Response Guidance regarding the use of stressor-response methodology stated:
[W]e recognize the stressor-response approach as a legitimate, scientifically based method for developing numeric nutrient criteria if it is appropriately applied (i.e., not used in isolation but as part of a tiered weight-of-evidence approach using individual lines of evidence). SAB Recommendations at xii. In the cover letter transmitting its recommendations, the SAB further advised:

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The empirical stressor-response framework described in the Guidance is one possible approach for deriving numeric nutrient criteria, but the uncertainty associated with estimated stressorresponse relationships would be problematic if this approach were
[sic] used as a “stand alone” method because statistical associations do not prove cause and effect. We therefore recommend that the stressor-response approach be used with other available methodologies in the context of a tiered approach where uncertainties in different approaches are recognized, and weight-ofevidence is used to establish the likelihood of causal relationships between nutrients and their effects for criteria derivation. Id. at ii. Consistent with the SAB’s recommendations, the final Stressor-Response Guidance suggests that stressor-response analysis should include an evaluation of the “accuracy of the estimated relationships * * * with regard to the possible influence of known confounding variables.” Stressor-Response Guidance at ix. The SAB recommendations on the draft Stressor-Response Guidance are neither binding on the Agency nor directly applicable to the Region’s determination of effluent limits for the Newmarket permit. The recommendations were offered for the far more general purpose of developing methodologies to establish nutrient criteria, which have broad applicability and implications. They do not specifically address the case-specific determinations that permitting authorities must make to establish permit effluent limits. Nevertheless, the Board considers the Coalition’s citations to the SAB recommendations here for the limited purpose of assessing the Coalition’s arguments that the Region’s analysis was scientifically flawed. The record demonstrates that both the State, in the Great Bay Nutrient Report, and the Region, in the Newmarket permit proceeding, recognized the uncertainties in determining a conclusive numeric threshold for protecting eelgrass in the Great Bay estuary and used weight-of-the-evidence approaches to reach their conclusions. See, e.g., Great Bay Nutrient Report at 66; Fact Sheet at 16-28; RTC at 10-11, 57; Region’s Response at 20. Further, although the SAB recommendations were not binding, the Region explained in its Response to Comments on the Newmarket permit why it viewed the State’s weight-of-theevidence approach as consistent with the SAB recommendations: The SAB’s review of this approach [stressor-response analysis] was very clear in its support by stating “[t]he stressor-response approach is a legitimate, scientifically based method for developing numeric nutrient criteria if the approach is appropriately applied (i.e. not used in isolation but as part of a weight-of-evidence approach).” Thus it is recommended to combine the stressor-response approach with other information that documents cause and effect.

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The proposed numeric thresholds developed by the NHDES did not use the stressor-response approach in isolation. It used a weight of evidence approach with multiple lines of evidence. The estuarine eutrophication model used by NOAA (Bricker, 2007) relating external nutrients to primary (phytoplankton blooms and proliferation of macroalgae) and secondary (low dissolved oxygen and loss of submerged aquatic vegetation) symptoms was used as a guide for the analysis. Additionally, the NHDES assessed cause and effect data from the literature, criteria developed in other states, and reference concentration approach * * * in the development of its proposed numeric thresholds. RTC at 78. The Coalition concedes in the Petition that a weight-of-the-evidence approach may be appropriate, but contends that the particular weight-of-theevidence approach used by the State and the Region was not scientifically defensible. Petition at 90. This contention is contradicted by the comments of the two peer reviewers of the State’s Great Bay Nutrient Report, who specifically commended the State’s use of a weight-of-the-evidence approach, as described above. See Great Bay Nutrient Report app. C. The Coalition contends that the Region’s and the State’s purported weightof-the-evidence analyses were flawed because they failed to analyze uncertainties and “confounding factors” as the SAB recommended. Petition at 91. Instead, the Coalition claims, “EPA simply excluded the site-specific information showing that the relationship did not in fact exist.” Id. at 90. The Petition does not identify what “confounding factors” the Region and State failed to analyze or what analysis was required, other than a footnote generally suggesting that more analysis should be done of the relationship between total nitrogen and transparency. Id. at 91 n.79. 20 These vague and unsupported allegations are insufficient to sustain the Petitioner’s burden of demonstrating clear error or abuse of discretion. Moreover, the allegations are contradicted by the clear weight of the evidence in the record. The Great Bay Nutrient Report and the Region’s Response to Comments contain considerable analysis of the relationship between nitrogen and transparency in the Great Bay estuary. See, e.g., Dominion Energy, 12 E.A.D. at 510 (explaining that where the Region’s rationale is adequately supported and explained, the EAB

20

The Petition’s allegation that information was excluded contains unexplained citations to “RTC at 2 n.1” and “Exhibit 15 at 9-10.” Petition at 90. The Coalition’s more specific contentions that the Region excluded relevant information from the record are addressed in Part VII.D below.

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typically defers to the permit issuer on technical determinations; differences in scientific opinion do not demonstrate clear error or abuse of discretion). e. The Coalition Failed to Preserve Its “Daubert Test” Argument for Review As explained in Part III.B., Petitioners before the Board are required to demonstrate that any issues and arguments raised on appeal have been preserved for Board review during the public comment period, unless the issues or argument were not reasonably ascertainable before the close of public comment. 40 C.F.R.
§§ 124.13, 19. The Coalition failed to demonstrate that it raised the argument that the Great Bay Nutrient Report should be excluded from the record under the “Daubert Test” (referring to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)) during the comment period. Petition at 91-95. This issue therefore was not preserved for review. Even if this issue had been preserved for review, the Daubert test, which delineates standards for evaluating expert scientific testimony in federal evidentiary trials, does not apply to or provide controlling principles for this administrative proceeding. See In re Solutia Inc., 10 E.A.D. 193, 211 n.22 (EAB 2001). As explained in section VII.A.1.a, the governing regulations specifically authorize NPDES permit issuers to consider all available information in determining what effluent limitations are necessary to meet state water quality standards. f. Petitioner Failed to Demonstrate That the State Admitted That the Conclusions of the Great Bay Nutrient Report Were in Error The Petition alleges that Phillip Trowbridge, the author of the Great Bay Nutrient Report, and NHDES admitted that the Report was in error. Petition at 8488. This allegation is based on deposition testimony from Mr. Trowbridge in a state judicial action 21 and a letter from NHDES Commissioner Burack that postdated the public comment period on the Newmarket permit. See Letter from Thomas S. Burack, Comm’r, NHDES, to Thomas J. Jean, Mayor, City of Rochester, et al. (Oct. 19, 2012) (“Burack Letter”) (A.R. H.43). The Coalition argues that this information should be considered by the Board because it was not available until after the public comment period closed. Even if it were appropriate to consider this information, a

21

The deposition was taken in connection with an action brought by the Coalition against NHDES in New Hampshire Superior Court challenging the Great Bay Nutrient Report. The case was dismissed on November 7, 2012, and is currently on appeal. See City of Dover v. NHDES, No. 2012-CV-00212 (N.H. Super. Ct. Nov. 7, 2012), appeal docketed, No. 2013-0119 (N.H. July 16, 2013).

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point the Board does not decide, the Board finds that the record does not support the Coalition’s argument that Mr. Trowbridge and NHDES admitted that their scientific conclusions were in error. The Petition does not provide specific testimony by Mr. Trowbridge supporting its assertion. Rather, the Coalition relies on its own characterizations of deposition testimony without explaining the context or specific statements made in the deposition. Such characterizations, without sufficient support in the record, provide no basis for Board review. Further, the Burack letter specifically reaffirmed NHDES’ conclusions in the Great Bay Nutrient Report, stating: In summary, DES maintains that the Great Bay Estuary exhibits all the classic signs of eutrophication and that excessive nitrogen is causing or contributing to the water quality problems in the estuary. Many of the claims in your letter over-simplify the situation, exclude key information, or extrapolate site-specific results to the whole estuary. Burack Letter at 1. The Board agrees with the State that the Coalition has mischaracterized the Burack letter, as well as the Trowbridge deposition. See NHDES Amicus Brief at 3. The Board concludes that the Coalition has failed to support its allegations that the State has admitted that the conclusions of the Great Bay Nutrient Report were in error. g. Conclusion: Petitioner Has Failed to Demonstrate That the Region’s Use of a 0.3 mg/l TN Instream Water Quality Target Was Clearly Erroneous or an Abuse of Discretion As stated in Part III.A., when evaluating a challenged permit decision for clear error, the Board examines the administrative record that serves as the basis for the permit to determine whether the permit issuer exercised his or her “considered judgment,” see In re Steel Dynamics, Inc., 8 E.A.D. 165, 191, 224-25 (EAB 2000), whether the permit issuer articulated with reasonable clarity the reasons supporting its conclusion and the significance of the crucial facts it relied upon when reaching its conclusion, see In re Shell Offshore, Inc., 13 E.A.D. 357, 386 (EAB 2007), and whether the record as a whole demonstrates that the permit issuer “duly considered the issues raised in the comments” and ultimately adopted an approach that “is rational in light of all information in the record,” In re Gov’t of D.C. Mun. Separate Storm Sewer Sys., 10 E.A.D. 323, 342 (EAB 2002). The record here demonstrates, and the Board finds, that the Region had a rational basis for its decision to use an instream water quality target of 0.3 mg/l TN for the Newmarket permit, duly considered the issues raised in the comments, articulated

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the reasons supporting its conclusions with reasonable clarity, and adopted an approach that is rational in light of all the information in the record. As the Region acknowledges, there is some degree of scientific uncertainty involved in determining the precise numeric water quality target for nitrogen that is necessary to meet the State’s narrative water quality standards. The Coalition urges EPA to wait for additional scientific testing and analysis before imposing nitrogen effluent limitations on the Newmarket Plant. The Board agrees with the Region that further delay would be contrary to the Agency’s legal obligations. Further, as the Region explained in its Response to Comments, further delay is imprudent in light of the receiving water conditions in the Lamprey River: The Coalition also cites to the existence of scientific uncertainty or complexity – two undeniable attributes of this permit proceeding – as a reason to forego reliance on currently available data and peerreviewed studies such as the NHDES Great Bay Nutrient Report in lieu of future studies and data collection and further peer review processes, specifically, to establish a causal link between nitrogen loading from the watershed and cultural eutrophication in the receiving waters. EPA finds no merit in this objection, not only Warning: truncated output (original token count: 25114) Total output lines: 1724

because it misapprehends the legal standard for imposing necessary pollutant controls, but also because additional delay would be imprudent in light of receiving water conditions, particularly in tidal tributaries such as the Lamprey River, which are already impaired and showing clear signs of nutrient-induced water quality problems; because of the magnitude of the Facility’s discharge, especially as it impacts the Lamprey River; because of the nature of nutrient pollution (i.e., the eutrophication cycle, once begun, can be difficult to address, as nutrients tend to recycle in the ecosystem); because the scientific and technical record in this case is more than sufficient to support the limits in the judgment of EPA and impartial experts; and because additional analyses will always still leave some irreducible scientific uncertainty given the complexity of the environmental context. RTC at 16 (footnote omitted). 22

22

The Coalition specifically requested during the public comment period that the Region defer setting permit limits for nitrogen until further studies and peer reviews are conducted under a memorandum of agreement (“MOA”) between the Coalition and NHDES. The Region declined to delay its determination for the Newmarket permit, for the reasons explained above, and further noted that the Coalition had failed to live up to its MOA commitment to conduct additional monitoring and modeling and had made

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The existence of some scientific uncertainty does not absolve the Region of its responsibility to establish a permit effluent limitation for nitrogen in the Newmarket permit based on the best scientific information that is currently available. The U.S. Court of Appeals for the First Circuit made this clear in Upper Blackstone Water Pollution Abatement District v. EPA: As in many science-based policymaking contexts, under the CWA the EPA is required to exercise its judgment even in the face of some scientific uncertainty. The Supreme Court has recognized this dimension of EPA decisionmaking in the context of the Clean Air Act. In Massachusetts v. EPA, 549 U.S. 497 * * * (2007), the court held that the EPA cannot “avoid its statutory obligation by noting the [presence of] uncertainty.” Id. at 534 * * * See also MiamiDade County v. EPA, 529 F.3d 1049, 1065 (11th Cir. 2008) (holding that the “EPA is compelled to exercise its judgment in the face of scientific uncertainty unless that is so profound that it precludes any reasoned judgment”); Ethyl Corp., 541 F.2d [1, 28 (D.C. Cir. 1976) (en banc)] (“[R]ecognizing . . . the developing nature of [the field] .
. . [t]he [EPA] Administrator may apply his expertise to draw conclusions from suspected, but not completely substantiated, relationships between facts, from trends among facts, from theoretical projections from imperfect data, from probative preliminary data not yet certifiable as ‘fact,’ and the like.”).

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“[A]dmission of uncertainties where they exist, public exposure of the assumptions and data incorporated into the analysis, the acceptance and consideration of public comment,” and, ultimately, a decision that reflects the rule of reason, are the structural features of reasoned, publicly accountable science-based agency decisionmaking. 690 F.3d at 23-24, 27-28 (1st Cir. 2012) (footnote and citation omitted), cert. denied, 133 S.Ct. 2382 (2013). In the Board’s view, the Region has met the First Circuit’s expectations for “reasoned, publicly accountable science-based agency decisionmaking” in its selection of the 0.3 mg/l TN instream water quality target for the Newmarket permit. The Region has acknowledged the uncertainties that exist regarding the precise numeric criterion for nitrogen that is necessary to meet the State’s narrative

“extremely minimal progress in developing a model and indeed appears to have abandoned that effort for the time being.” RTC at 54.

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water quality standards, publicly explained the assumptions and data on which its analysis relies, accepted and responded to public comments, and ultimately reached a decision that reflects the rule of reason. See In re City of Attleboro, 14 E.A.D. 398, 413 (EAB 2009) (“[S]cientific uncertainty provides no basis for the Region to refrain from exercising its judgment.”); In re Dominion Energy Brayton Point, LLC, 13 E.A.D. 401, 426 (EAB 2007) (rejecting suggestion that, when presented with scientific uncertainty, the permitting authority should not exercise its discretion.).

2. The Region Did Not Clearly Err or Abuse its Discretion in Determining
   That Effluent from the Newmarket Plant Had a “Reasonable Potential to Cause or Contribute” to an Exceedance of the 0.3 mg/l TN Instream Target The second step in the Region’s consideration of permit limitations for the Newmarket Plant was to determine whether effluent from the plant has a “reasonable potential to cause or contribute” to an exceedance of the instream water quality target of 0.3 mg/l TN. Federal regulations require that NPDES permits include effluent limitations “which the [permit issuer] determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality.” 40 C.F.R. § 122.44(d)(1)(i). Therefore, upon concluding that an instream water quality target of no more than 0.3 mg/l TN is necessary to achieve the State’s narrative criteria for the Lamprey River, the Region was required to determine whether effluent from the Newmarket Plant has a “reasonable potential to cause or contribute” to an exceedance of that instream numeric limit. See RTC at 25. The regulations direct permit issuers to consider the following factors in determining whether a discharge has the “reasonable potential” to cause or contribute to an exceedance of a narrative or numeric water quality criterion:
   [T]he permitting authority shall use procedures which account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant or polluting parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water. 40 C.F.R. § 122.44(d)(1)(ii).

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The Region explained its analysis of the “reasonable potential” for the Newmarket Plant’s discharge to “cause or contribute” to an exceedance of the water quality target as follows in the Fact Sheet accompanying the draft permit:
[A]ll available water quality data for the Lamprey River collected between 2000 and 2008 were analyzed by NHDES. The median total nitrogen concentration in the river was 0.45 mg/l.

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The average total nitrogen concentration from the Newmarket discharge from February - November 2008 was 30 mg/l. The average discharge flow for this time period was 0.68 [million gallons per day] * * *. The increase in receiving water total nitrogen concentration currently caused by the Newmarket treatment plant at the point of discharge can be estimated by dividing the effluent concentration by the dilution factor. At a discharge concentration of 30 mg/l and a dilution factor of 55, the resulting receiving water concentration after initial mixing is 0.55 mg/l, which exceeds the target instream concentration of 0.3 mg/l. Since this value only represents the increase in receiving water total nitrogen concentration due to the discharge, the actual receiving water concentration at the point of discharge would be the sum of the existing background plus the increase caused by the discharge. Instream data collected upstream of the tidal dam on the Lamprey River, upstream of and uninfluenced by the Newmarket discharge but downstream of the effluent discharge from Epping, shows that median total nitrogen concentration in the Lamprey River is 0.39 mg/l (PREP, 2010 and 2009). Fact Sheet at 27-28 (first emphasis added). This calculation demonstrates conclusively that the untreated nitrogen in the Newmarket Plant’s effluent has a “reasonable potential to cause or contribute” to an exceedance of the 0.3 mg/l TN water quality target. As the Region noted, the calculations show that the waters of the Lamprey River at the location of the Newmarket Plant have reached and exceeded their assimilative capacity for nitrogen. Id. at 27. The Petition does not challenge the Region’s analysis of the “reasonable potential” for the Newmarket Plant’s effluent to cause or contribute to an exceedance of the 0.3 mg/l TN instream water quality target. Indeed, the term “reasonable potential” never appears in the Petition. Rather, the Coalition’s objections are largely addressed to the Region’s underlying determination of the instream numeric water quality target, as described in Part VII.A.1 above.

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Therefore, the Coalition has provided no basis for the Board to review the Region’s “reasonable potential” analysis for the Newmarket Plant effluent. 23

3. The Region Did Not Clearly Err or Abuse its Discretion in
   Determining That a Permit Effluent Limitation for TN of 3.0 mg/l TN is Necessary to Achieve the Instream Water Quality Target of 0.3 mg/l TN a. The Region Did Not Clearly Err in Selecting a Numeric Limit of 3.0 mg/l for TN The final step in the Region’s decisionmaking process for the nitrogen limit for the Newmarket Plant is the determination of the specific numeric effluent limit that is “necessary to achieve” the applicable water quality criteria. 40 C.F.R. § 122.44(d)(1). The Region selected a numeric limit of 3.0 mg/l TN, which the parties appear to agree is the current limit of technology. 24 Fact Sheet at 29; Petition at 96. The Region explained that the 3.0 mg/l TN limit will ensure that the plant’s effluent (after dilution) is below the water quality target of 0.3 mg/l TN, based on the following calculation: At the proposed total nitrogen effluent limit of 3 mg/l, the estimated increase in receiving water concentration at the point of discharge would be 0.05 mg/l (3/55) [the effluent limit divided by the dilution

23

The Coalition’s repeated objections that NHDES’ Great Bay Nutrient Report does not demonstrate “cause and effect” between nitrogen levels, water transparency and eelgrass growth appear to be addressed to the Region’s use of the 0.3 mg/l TN instream water quality target, rather than to the facility-specific determination of the “reasonable potential” of the Newmarket Plant to cause or contribute to an exceedance of that target. To the extent that the Coalition contends that this argument also extends to the Region’s “reasonable potential” determination for the Newmarket Plant, the Coalition is simply wrong about the applicable legal standard. The plain language of the regulatory requirement (that a permit issuer determine whether a source has the “reasonable potential to cause or contribute” to an exceedance of a water quality standard) does not require a conclusive demonstration of “cause and effect.” See In re Upper Blackstone Water Pollution Abatement Dist., 14 E.A.D. 577, 599-601 & n.29 (EAB 2010). 24

The Region explained that “[t]echnology thresholds for nitrogen treatment are typically considered to be 8.0 mg/l total nitrogen for a basic denitrification process, 5.0 mg/l for intermediate levels of denitrification and 3.0 mg/l for advanced levels of denitrification; the limit of technology for nitrogen treatment is often considered to be 3.0 mg/l.” Fact Sheet at 29 (citations omitted).

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factor of 55], which is less than the proposed total nitrogen instream target of 0.3 mg/l. Fact Sheet at 28. The Coalition does not present a clear argument that the Region erred in this final step of selecting the 3 mg/l TN numeric effluent limit for the Newmarket Plant. There appears to be no dispute that 3 mg/l is the current limit of available technology for nitrogen removal. Although not entirely clear from the Petition, the Coalition’s objections to the Region’s selection of the 3.0 mg/l TN limit appear to relate to the Coalition’s broader assertions regarding the alleged flawed science underlying the need for nitrogen reductions and the uncertainties regarding the cause of impairments to the Lamprey River and the Great Bay. These objections pertain more to the Region’s selection of the 0.3 mg/l TN water quality target, which the Board addressed in Part VII.A.1, than to the final step of establishing the 3.0 mg/l TN effluent limit. The Coalition suggests that a more lenient effluent limit of 8 mg/l TN would be more appropriate for the Newmarket Plant in light of the scientific errors and uncertainties alleged in the Petition. Petition at 13, 27 n.30, 82. The Coalition does not demonstrate, however – or even argue – that an effluent limit of 8 mg/l TN would be adequate to meet the 0.3 mg/l TN water quality target. The Region explained clearly in its Response to Comments why it found the suggested 8 mg/l TN effluent limit unacceptable: While the Permittee, the Coalition and others differ with EPA over the precise level of nitrogen control necessary to address the water quality impairments in the receiving water, EPA has not been persuaded by arguments made for imposing a less stringent limit than 3.0 mg/l. In citing to the reasonableness of a limit of 8 mg/l, the Permittee and Coalition have relied in large part on the existence of scientific uncertainty; the need for further study; the costs associated with upgrading treatment facilities to achieve lower limits; and the fact that non[point] sources contribute the majority of nitrogen loading to the receiving waters. EPA does not find the rationales underlying the approach advocated by the Permittee and Coalition to be compelling in light of the severe nutrient-related impacts in the receiving waters, and the [Newmarket] Facility‘s significant contribution to such impacts, and because such reduced level of nitrogen control would require even greater nonpoint source controls, which are less predictable and certain to achieve. Additionally, while EPA recognizes that the majority of total nitrogen loading is coming from nonpoint sources, wastewater treatment plants like Newmarket discharge the majority of the

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dissolved inorganic nitrogen (DIN) load, which is the most bioreactive component of total nitrogen. As the preferential form of nitrogen for algae growth, DIN is therefore the highest priority for reductions as part of a comprehensive approach to reducing total nitrogen levels as stringent as necessary to comply with water quality standards. During the critical season for algae growth, the point source contribution is even more significant given the reduced rate of nonpoint source contributions during this period. Nitrogen removal at the treatment plants is thus also the most predictable and effective way to control the impacts of the most harmful component of total nitrogen on the receiving waters. More fundamentally, the

• • • Coalition‘s proposed course does not provide a discernable
      pathway to achieve water quality standards, opting instead to temporize based largely on factors that have little purchase scientific uncertainty and cost - in the context of establishing a water quality-based effluent limitation, especially in the context of a longexpired permit and a pressing environmental harm. RTC at 17, 21 (emphasis added) (citations omitted). 25 The Coalition fails to address the Region’s response or to explain why it is erroneous. The Board finds that the Region’s response is well-explained and reasonable, and declines to review the Region’s determination that a permit effluent limitation of 8.0 mg/l TN is unacceptable for the Newmarket Plant. See 40 C.F.R.
      § 124.19(a); see also, e.g., In re Pio Pico Energy Ctr., 16 E.A.D. 56, 64-65 (EAB 2013), (explaining that petitioners must address a permit issuer’s response to its comments and demonstrate that the response is clearly erroneous). 26

25

Although the Permittee, the Town of Newmarket, also suggested the 8 mg/l permit limit in its public comments, the Town did not object to the final permit. 26

As a final argument, the Coalition suddenly reverses course and suggests that the 3.0 mg/l TN permit limit is not strict enough to meet water quality standards. Petition at 95. Among other things, the Coalition alleges that the Newmarket permit limit for nitrogen will not ensure achievement of water quality standards because it is unlikely that sufficient nonpoint source controls will be implemented to attain 0.3 mg/l TN water quality objective upstream of the Newmarket Plant. Id. The Coalition did not demonstrate that this issue was raised during the public comment period. Therefore, the Board finds that it was not preserved for review. 40 C.F.R. §§ 124.13, .19; see Pio Pico, 16 E.A.D. at 64 (explaining that petitioner must demonstrate that any issues and arguments it raises on appeal were raised during the public comment period or public hearing on the draft permit, unless the issues or arguments were not reasonably ascertainable at the time); In re City of Attleboro, 14 E.A.D. 398, 405, 441-42 (EAB 2009). Even if this argument had been preserved for review, the assertion is based on pure speculation that the state and local

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The Board concludes that the Coalition has failed to demonstrate that the Region clearly erred or abused its discretion in determining that an effluent limitation of 3.0 mg/l TN in the Newmarket permit is necessary to meet the State’s water quality standards. b. The Region Did Not Clearly Err When it Declined to Adhere to the Memorandum of Agreement Signed by NHDES and the Coalition The Coalition next argues that the Region violated 40 C.F.R. § 122.44(d) by declining to adhere to the provisions contained in a memorandum of agreement (“MOA”) executed between the Coalition and NHDES after NHDES issued the Great Bay Nutrient Report. See Petition at 82-84 (citing Memorandum of Agreement between the Coalition and NHDES relative to Reducing Uncertainty in Nutrient Criteria for the Great Bay/Piscataqua River Estuary (Apr. 2011) (A.R. H.69)). The Coalition asserts that “the MOA concluded that until such time as more detailed information could be developed to support the need for more stringent reductions, limitations more restrictive than 8 mg/l TN should not be imposed.” Id. at 82. The Coalition argues that this is a “state regulatory interpretation regarding narrative criteria compliance [that] need[s] to be respected (unless obviously incorrect).” Id. at 83. NHDES Commissioner Thomas Burack and representatives of the five municipalities that constituted the Coalition signed the MOA in April 2011. 27 MOA at 3. The MOA acknowledges a measure of scientific uncertainty in the Great Bay Nutrient Report and reflects an intent to allow some limited time for the Coalition to conduct additional monitoring and modeling, starting with the Squamscott River, which was to be substantially completed by January 2012. Id. at 1-2; RTC at 54, 66 n.31. In its Response to Comments on the Newmarket permit, the Region noted that the Coalition provided to EPA only limited results from monitoring conducted pursuant to the MOA and explained that “those results are consistent with multiple previous data sets.” RTC at 66 n.31. The Region further noted that, following data collection, the Coalition decided not to develop a water governments will be unable to reduce nonpoint sources of nitrogen sufficiently to meet water quality standards. Such speculation is insufficient to support Board review. See In re Prairie State Generating Co., 13 E.A.D. 1, 61 (EAB 2006) (“The Board will not overturn a permit provision based on speculative arguments.”) (quoting In re Three Mountain Power, LLC, 10 E.A.D. 39, 58 (EAB 2001)). 27

Of the five municipalities that signed the MOA, only the Cities of Dover and Rochester filed the petition for review in this matter.

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quality model for the Squamscott River. Id.; see also Region’s Response at 92-93,

95. Nevertheless, the Region indicated that it would “consider any significant
    findings” that result from the further monitoring conducted pursuant to the MOA, “although EPA did not concur with the conclusions that formed the basis for the MOA and was not a party to the MOA.” RTC at 54. The Board agrees with the Region that EPA is not obligated by the terms of the MOA to limit the nitrogen effluent limit for the Newmarket Plant to a level no more restrictive than 8 mg/l TN. The MOA does not purport to be a “state regulatory interpretation of narrative criteria” and the State of New Hampshire has not treated it as such. The MOA is simply a negotiated agreement between NHDES and the Coalition to cooperate for a period of time to collect more data in an effort to diminish the inherent scientific uncertainty associated with establishing water quality limits for nutrients. Unlike the Great Bay Nutrient Report (which expressly states NHDES’ intent to use its proposed nutrient thresholds to interpret state narrative water quality criteria for purposes of impairment listings), the MOA contains no language purporting to set forth proposed state water quality criteria or interpretations. Further, EPA did not sign the MOA and is not bound by its terms. The Region also points out that NHDES has continued to stand by the science and proposed criteria of its Great Bay Nutrient Report after signing the MOA with the Coalition. See id. at 66-67; Region’s Response at 92-93. In letters sent subsequent to the MOA’s execution, NHDES stood by the proposed nutrient criteria for the estuary but nonetheless agreed to sign the MOA in an effort to “reduc[e] the uncertainties in the data and analyses as they pertain to specific sections of tidal rivers.” Letter from Thomas S. Burack, Comm’r, NHDES, to Cosmas Iocovozzi, Chairman, Bd. of Selectman, & Jane Hislop, Co-Chair, Conservation Comm’n, Town of Newington at 1 (June 8, 2011) (A.R. H.73); Letter from Thomas S. Burack, Comm’r, NHDES, to Tom Irwin, CLF, Mitch Kalter, Great Bay Trout Unlimited, & Derek Durbin, NH Coastal Prot. P’ship at 2 (June 8, 2011) (A.R. H.74). The Coalition counters that the letters sent by NHDES Commissioner Burack subsequent to the signing of the MOA were “sent to non-MOA signatory communities” and concludes, without analysis, that “those letters do not refute the MOA.” Petition at 83. The Coalition fails to explain why it matters who received the letters sent by NHDES, and the Board finds no significance in this distinction. Further, the State of New Hampshire’s amicus brief filed in this appeal plainly states that “NHDES stands by the thresholds [in the Great Bay Nutrient Report] and the scientific evidence that supports them and will continue to use them in developing the list of impaired waters for the Great Bay Estuary.” NHDES Amicus

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Brief at 3. Thus, the Coalition has failed to persuade the Board that NHDES intended the MOA to change its interpretation of its narrative water quality standards or its proposed nutrient threshold levels for the Great Bay Estuary reflected in the Great Bay Nutrient Report. In any event, regardless of NHDES’ intent in entering into the MOA with the Coalition, EPA cannot ignore its independent obligation under CWA
§ 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C), to ensure that the Newmarket permit complies with applicable water quality standards. As the Board has previously recognized, the Agency has an independent duty under CWA § 301(b)(1)(C) to include a more stringent permit limitation than that specified by a state if the Region reasonably believes it is necessary to achieve a state water quality standard. See, e.g., In re San Jacinto River Auth., 14 E.A.D. 688, 696 (EAB 2010); In re City of Moscow, 10 E.A.D. 135, 151 (EAB 2001) (citing In re City of Jacksonville, 4 E.A.D. 150, 158 (EAB 1992), and 40 C.F.R. § 122.44 (d)(1), (5)); see also In re Gen. Elec. Co., 4 E.A.D. 358, 364-65 (EAB 1992) (recognizing EPA’s nondiscretionary duty to implement the Hazardous Solid Waste Amendments and affirming that in fulfilling its duty the Agency cannot be bound by state regulatory programs). The Coalition has failed to demonstrate that the Region clearly erred by declining to give effect to the terms of the MOA when it established a nitrogen effluent limitation for the Newmarket permit that is more restrictive than 8 mg/l TN. B. The Region Did Not Apply the State’s 0.3 mg/l Water Quality Threshold as a Revised Water Quality Standard or Violate Rulemaking Requirements The Coalition argues that the Region, “in deciding that a 0.3 mg/l TN criteria must be met throughout the Great Bay Estuary to protect eelgrass,” is illegally applying an unadopted numeric criterion when developing effluent limitations. Petition at 46-49. The Petition specifically alleges that the Region’s application of this criterion to find waters to be nutrient impaired and to establish permit effluent limits constitutes “the illegal application of a new unadopted numeric [water quality] standard under 40 C.F.R. § 131.21.” Id. 28 The Board finds

28

The Petition also argues that it was illegal for EPA to use this threshold in finding the waters of the Great Bay and the Lamprey River to be nutrient impaired. Petition at 48. EPA’s acceptance of the State of New Hampshire’s impairment listings for the Great Bay estuary is a separate agency action that is not before the Board in this case.

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that this argument is not supported by either the facts or the applicable law in this case. First, the Petition fails to demonstrate that EPA has made any decision “that a 0.3 mg/l TN criteria must be met throughout the Great Bay Estuary.” The Region’s decision at issue here is limited to the determination of effluent limits for the Newmarket Plant’s NPDES permit. Further, in its Response to Comments, the Region specifically stated that: EPA does not intend to impose LOT [a reference to the 3.0 mg/l TN limit-of-technology effluent limitation] on all [publically owned treatment works] discharging in the watershed. EPA will instead impose limits on a case-by-case basis, determined in large part by the size and location of the facility and other site-specific factors. RTC at 82. Second, the Petition fails to show that EPA’s selection of the 0.3 mg/l TN water quality target for the Newmarket permit violated any requirement of law. The Coalition cites 40 C.F.R. § 131.21 as the applicable law which the Region allegedly violated. See Petition at 48. That section, however, is not applicable to EPA’s permitting action at issue in this case. Rather, section 131.21 directs EPA to review and approve or disapprove “officially adopted” state water quality standards and revisions thereto, within certain time frames. See 40 C.F.R.
§ 131.21(a). The nutrient criteria proposed in the State’s Great Bay Nutrient Report, including the 0.25-0.30 mg/l TN criterion proposed for the protection of eelgrass habitat, are not officially adopted state water quality standards. City of Dover v. U.S. EPA, No. 12-CV-01994-JDB (D.D.C. July 30, 2013) (“Because the 2009 Document was never enacted into state law[,] * * * it is not a water quality standard at all, and cannot be a revised water quality standard under the [CWA]. Accordingly, EPA’s duty to review revised water quality standards was not triggered by the publication of the Document.”). Finally, as explained in Part VII.A.1.a, the Region’s consideration of the State’s proposed nutrient criteria, along with other available information, in selecting instream water quality targets and effluent limitations for the Newmarket permit was expressly permitted under EPA regulations. The Board finds that the Coalition has failed to demonstrate that the Region violated rulemaking requirements or made any other clear error of law in selecting the 0.3 mg/l TN instream water quality target for the Newmarket permit.

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C. The Region Did Not Err in Considering the Contributions of Nonpoint Sources in Determining the Newmarket Permit Conditions The Coalition contends that the Region’s permit decision for the Newmarket Plant effectively modifies EPA’s interpretation of the NPDES permitting regulations at 40 C.F.R. § 122.44(d) by unfairly penalizing point sources “with more restrictive requirements where nonpoint sources are the clearly controlling load influencing ambient pollutant concentrations.” Petition at 49-50. The Coalition points out that the nitrogen load from the Newmarket Plant is a relatively small portion of the overall load of nitrogen to the Lamprey River from all sources and that nonpoint sources contribute the predominant load. Id. at 49. The Region does not dispute that characterization, but emphasizes that the Newmarket Plant contributes a significant portion of the “controllable” load of nitrogen and that the type of effluent contributed by the plant (with a high dissolved inorganic nitrogen content) contributes disproportionately to algae growth in the receiving waters. See RTC at 21. The Board finds no indication that the Region adopted a new interpretation of the applicable regulations in selecting the 3.0 mg/l TN effluent limit for the Newmarket Plant. The record does not contain any statement by the Region purporting to set forth a new interpretation of EPA regulations. To the contrary, the Region specifically stated that its effluent limitation for the Newmarket Plant is a site-specific determination and does not reflect an EPA decision to impose this limitation on all similar sources in the watershed. See id. at 82. As the Region explained and demonstrated at considerable length in the record, its determination of the effluent limit for the Newmarket Plant is specific to the plant and the particular needs of the watershed involved in this case. See id. at 17-21; Fact Sheet at 10-31. The statute and the regulations require EPA to set permit effluent limits for each point source at the level that is necessary to meet the state’s water quality standards. There is nothing new about the Region’s straightforward application of those requirements in this case. Further, the Coalition has failed to demonstrate any basis in applicable law or policy for its contention that effluent limits must be allocated proportionately among point and nonpoint sources based on their relative contributions to the overall load of a pollutant in a waterbody. As the Coalition acknowledges, the NPDES permit regulation at 40 C.F.R. § 122.44(d) “does not specify how an agency may balance pollutant reduction requirements when point sources are the minor component contributing to an alleged impairment.” Petition at 49. The Coalition suggests, but fails to show, that prior EPA interpretations of the permitting regulations call for allocating effluent limits in proportion to each source’s input

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loading. The Petition cites only a graph from a regulatory preamble and a technical support document pertaining to control of toxic pollutants. See id. Neither of these documents provides relevant guidance for this case. Both pertain only to toxic pollutants, which are not at issue here, and neither addresses the allocation of pollutant loads among point and nonpoint sources. Further, the cited technical manual merely mentions proportionality as one of 19 potential allocation methods that states or EPA regions may use to allocate toxic wasteloads among point sources. This does not indicate that EPA has required or suggested that permitting authorities must use a “proportionality” approach to determine permit effluent limitations for point sources where pollutants are discharged by both point and nonpoint sources. 29 The Coalition further argues that the Region’s approach to the Newmarket permit is inconsistent with the U.S. Supreme Court’s mandate that “fair apportionment” is appropriate in situations “where joint and several liability would ordinarily be imposed.” Id. at 52 (citing Burlington N. & Santa Fe Ry. v. United States, 556 U.S. 599, 613-15 (2009); O’Neil v. Picillo, 883 F.2d 176, 179 (1st Cir. 1989); and Restatement (Second) of Torts § 443A(1)(b) (1976)). This argument was reasonably ascertainable during the public comment period on the draft permit, but the Coalition did not raise it; accordingly, the argument has not been preserved for review. See 40 C.F.R. §§ 124.13, .19(a). In any event, this case law addresses an entirely different legal issue, involving statutory liability under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601-9675, and the liability of joint tortfeasors under common law. This law is inapplicable to the determination of permit effluent limitations under the CWA, which is governed by the statutory and regulatory provisions described above. The Board concludes that the Coalition has failed to demonstrate that the Region clearly erred or abused its discretion with regard to considering the contribution of nonpoint sources to nitrogen discharges into the Lamprey River in 29

The CWA and EPA regulations and guidance provide some mechanisms for allocating pollutant loads among various contributing sources. See, e.g., the “Total Maximum Daily Load” (TMDL) provisions of CWA Section 303(d), 33 U.S.C. §1313(d), and 40 C.F.R. § 130.7. EPA’s TMDL regulations and guidance call upon states to develop wasteload allocations (for point sources) and load allocations (for nonpoint sources) that contribute pollutants to an impaired waterbody. These provisions do not apply to this case, however, as New Hampshire has not developed and sought EPA approval of a TMDL or wasteload allocations for nitrogen in the Lamprey River watershed. See Region’s Response at 88 n.54.

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determining the appropriate effluent limitation for nitrogen in the Newmarket permit. D.

The Coalition Has Not Demonstrated That the Region Violated Applicable Procedural Requirements in Issuing the Newmarket Permit

In addition to its substantive challenges to the Permit, the Coalition alleges that the Region failed to adhere to various procedural requirements during the permit proceeding. For the reasons explained below, the Board finds that the Coalition has failed to demonstrate that the Region violated procedural requirements, clearly erred, or abused its discretion.

1. The Region Did Not Impermissibly Exclude Information From the
   Record
   The Petition asserts that the Region impermissibly excluded the Coalition’s supplemental comments, submitted after the close of the public comment period but before the issuance of the final permit, from the record in this case. Petition at 27-33. The Petition notes that “none of the Coalition’s supplemental comments actually raised new comment issues. The Coalition was simply providing supplemental information with respect to issues previously raised in the Coalition’s original, timely filed comments.” Id. at 29 (underline in original) (emphasis added). The Coalition further avers that the Region’s decision to reject the Coalition’s latefiled comments as untimely and not respond to them, while simultaneously including information and analyses in the record from other sources after the comment period ended, was arbitrary and capricious and warrants a remand of the permit. See id. at 28-29. The Board finds that the Coalition’s objection is not supported by the facts in the record of this proceeding or by applicable law. First, the Coalition is mistaken in alleging that the Region excluded the Coalition’s late-filed comments from the record. Subsequent to the close of the public comment period on December 16, 2011, the Coalition submitted supplemental comments on nine separate occasions over the course of an eleven-month period, including dozens of attachments containing scientific data, deposition transcripts, letters, and photographs. See RTC at 2 n.1; Region’s Response at 78. In fact, the Region included these submissions in the administrative record. See A.R. C.3, D.1 to D.12; Certified Index to the Administrative Record, As Corrected at 3-8 (included in the EAB’s electronic docket as Filing No. 48). Further, the Region states that it considered this information in making its final permitting decision. Region’s Response at 78 (“EPA did include the supplemental comments as part of the administrative record and did consider them.”).

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Under the governing procedural regulations set forth at 40 C.F.R. part 124, the Region had discretion to accept these late-filed comments, but was not required to respond to them in its response to public comments. 30 The applicable regulation provides, in relevant part, that: (a) At the time that any final permit decision is issued under
§ 124.15, the Director shall issue a response to comments. * * * This response shall:

---

(2) Briefly describe and respond to all significant comments on the draft permit * * * raised during the public comment period, or during any hearing. (b) For EPA-issued permits, any documents cited in the response to comments shall be included in the administrative record for the final permit decision as defined in § 124.18. If new points are raised or new material supplied during the public comment period, EPA may document its response to those matters by adding new materials to the administrative record. 40 C.F.R. § 124.17(a)-(b) (emphasis added); see also id. § 124.18(b) (providing that the administrative record for a final permit includes comments received during the public comment period, the response to comments required by section 124.17, and any new material placed in the record under section 124.17). The plain language of the regulations makes clear that the permit issuer’s obligation to include comments in the record and respond to them applies only to timely-filed comments. See id. §§ 124.11, 124.18(b)(1)-(3). Nonetheless, the Region maintains discretion “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 information it relies upon raises substantial new questions.” In re

30

Throughout its argument that the Region violated procedural rules regarding the administrative record, the Coalition never cites to 40 C.F.R. part 124. The only prior Board precedent the Coalition cites discusses issue preservation, see Petition at 30 n.31, a threshold procedural requirement that is not at issue here because all of the late-filed comments the Coalition submitted were directly related to issues the Coalition previously raised in timely-filed comments, and thus the issues were properly preserved for appeal. See id at 29; see also Region’s Response at 78-80 & n.46 (observing that the Coalition appears to conflate the issues of timeliness and issue preservation).

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Upper Blackstone Water Pollution Abatement Dist., 15 E.A.D. 297, 312 (EAB 2011), aff’d, Nos. 11-1474 & 11-1610 (1st Cir. Aug. 3, 2012), cert. denied, 133 S. Ct. 2382 (May 13, 2013). As the Coalition itself pointed out, the late-submitted material did not raise new questions, but simply amplified on comments that were submitted during the public comment period. The Region responded to those comments at length, as described above. 31 Finally, the Coalition’s claim that the Region erred by supplementing the administrative record in order to respond to public comments must fail. See Petition at 28-29. The plain language of 40 C.F.R. § 124.17(b) recited above, which authorizes the permit issuer to add new information to the record in response to public comments, contravenes the Coalition’s assertion. The Board finds that the Coalition has failed to demonstrate procedural error in the Region’s handling of its late-filed comments and materials.

2. The Coalition Has Failed to Demonstrate That the Region
   Changed Its Rationale for the Newmarket Permit Effluent Limit After the Close of the Public Comment Period The Coalition asserts that the Newmarket permit must be republished and reopened for public comments because the Region, in responding to public comments on the draft permit, changed its rationale for the nitrogen effluent limit. Petition at 33-35, 52-54. In particular, the Coalition argues that the Region’s rationale for the nitrogen limits changed from “the need to improve transparency throughout the system to ensure eelgrass restoration” in the draft permit to the need to address “the demonstrated macroalgae problem” in the Region’s response to comments. See id. at 52. The record does not reflect a change in the Region’s basis for the permit’s nitrogen limit that would warrant reopening of the comment period. Rather, as stated in the Fact Sheet accompanying the draft permit, impairments to the Great Bay are the result of multiple factors including both transparency and macroalgae. See, e.g., Fact Sheet at 13 (“Increased nutrient inputs promote a progression of symptoms beginning with excessive plant growth of phytoplankton and macroalgae to the point where grazers cannot control growth.”), 14 (“[L]osses of submerged aquatic vegetation (SAV), such as eelgrass, occur when light is decreased due to

31

The Board has previously stated that the permit issuer’s response need not be of the same length or level of detail as the comment, nor does the permit issuer need to address each and every point made in the comments. E.g., In re City of Attleboro, 14 E.A.D. 398, 420 (EAB 2009).

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turbid water associated with overgrowth of algae * * *.”), 20 (“With increasing algal blooms the clarity of the water decreases and this can promote the growth of epiphytes and microalgae species on and around eelgrass.”). Contrary to the Coalition’s assertion, the Region’s Response to comments does not reflect a change in this position, but reiterates that both transparency and macroalgae growth, among other things, are of concern in the Great Bay. See, e.g., RTC at 42-44, 97, 100. Thus, the Coalition’s assertion that there has been a “switch” in the Region’s basis for the permit’s TN limitation necessitating a reopening of the public comment period is unsupported by the administrative record. 32 The Coalition also asserts that in the Burack Letter, 33 referenced in Part VII.A.1.f above, NHDES acknowledged that “nitrogen removal will not materially affect transparency in Great Bay is not a transparency limited system [sic]” and “concurs that transparency should not be the focus of the analysis.” Petition at 53. According to the Coalition, the “admissions” in the Burack letter undermine the Region’s initial justification for the permit’s nitrogen limitations. The Coalition mischaracterizes the Burack Letter. The letter specifically rejects the assertion that nitrogen could not have caused changes in transparency and that reducing nitrogen inputs would not improve transparency. See Burack Letter at 3-4. The letter states further that “reduced TN levels can only help to improve the light available to eelgrass, reduce the growth of macroalgae, and reduce direct nitrogen toxicity to submerged aquatic plants.” Id. at 4. The Board concludes that the Coalition has failed to demonstrate that the Region changed its rationale for the Newmarket permit effluent limit for nitrogen, and declines to require a reopening of the public comment period.

32

Under the applicable regulations, the Region may, in its discretion, reopen the comment period on a permit where “substantial new questions” arise during the pubic comment period. See 40 C.F.R. § 124.14(b). For the reasons stated above, however, the Coalition has failed to demonstrate any basis for reopening the comment period in this matter. 33

See Letter from Thomas S. Burack, Comm’r, NHDES, to Thomas J. Jean, Mayor, City of Rochester, et al. (Oct. 19, 2012) (A.R. H.43).

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3. The Coalition Has Failed to Demonstrate That the Region Clearly
   Erred or Violated the Coalition’s Due Process Rights in Conducting the Peer Review of the Great Bay Nutrient Report The Coalition next argues that the Region violated procedural requirements by declining to allow the Coalition to participate in the peer review of the Great Bay Nutrient Report. 34 Petition at 87-88. In particular, the Coalition asserts that despite its repeated requests to be a part of the peer review process and “ensure that appropriate technical questions prepared by the Coalition were addressed,” EPA refused to submit the Coalition’s questions to the peer reviewers and refused to consider the Coalition’s objections to the scope and content of the peer review in violation of section 101(e) of the CWA, 33 U.S.C. § 1251(e). Id. at 37, 87.…2114 tokens truncated…6 and (2) to allow the Coalition to take depositions of the experts who reviewed the State’s Great Bay Nutrient Report and of EPA employees. March Motion at 23. The Coalition also suggests that the Board should strike the peer reviews of the Great Bay Nutrient Report from the record, alleging bias on the part of one of the peer reviewers. September Motion at
4. For the reasons explained below, the Board denies the March and September
   Motions in their entirety.
5. The Board Denies the Coalition’s Motion to Add Documents to the
   Administrative Record
   The Coalition’s proposed supplemental documents for the administrative record generally consist of e-mails, letters, memoranda, reports, affidavits, a recent draft permit for a wastewater treatment facility in Massachusetts, and a recent EPA guidance on development of nutrient criteria. Many of these documents postdate the Region’s November 16, 2012 decision on the Newmarket permit that is under review in this case. The two affidavits and a declaration, March Motion, Supp. Exs. 19-21, were written by the Coalition’s consultants and expert after this appeal was filed, and offer additional opinions supporting the Coalition’s views concerning the role of nitrogen in the impairment of the waters of the Great Bay Estuary and the scientific validity of the State’s Great Bay Nutrient Report. The Coalition argues that these additional documents should be added to the administrative record because they “(1) were received and considered by EPA in advance of the Newmarket NPDES permit issuance; (2) depict EPA’s involvement

36

Collectively, the March and September Motions attach a total of thirty-two exhibits, several of which include multiple documents and long strings of e-mail messages, proposed for inclusion in the administrative record. The motions refer to these documents as “Supplemental Exhibits,” and they are cited in this decision as either March Motion, Supp. Ex. __ or September Motion, Supp. Ex. __.

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in critical regulatory decisions preceding the Newmarket NPDES permit and the rationale for such decisions; (3) were not reasonably ascertainable during the public comment period; (4) confirm specific facts or scientific positions in the Newmarket NPDES permit are in error, using the most reliable source; (5) support the Coalition’s claims of bad faith; (6) are necessary to determine whether EPA considered all of the relevant factors; and/or (7) explain technical terms and complex subject matter before the Board.” March Motion at 1; see also September Motion at 5 (proposed supplemental materials “are relevant to the scientific validity of the Agency’s actions”), and 6 (“[T]he Coalition has shown with particularity that the Agency is acting in bad faith and falsely representing its position before the Board.”). The Coalition’s arguments reflect a flawed understanding of the basic principles of administrative record review and the limited instances in which an administrative record may be supplemented on appeal. The Coalition presents an overly broad view of when it is appropriate to supplement an administrative record, seemingly making little distinction between administrative appellate practice and the broad discovery practices that are permitted in federal court litigation. It is not sufficient to simply allege, as the Coalition does, that these materials “are relevant.” September Motion at 5. As the Board explained at length in In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 511-534 (EAB 2006) (“Dominion I”), wellestablished principles of administrative law and the EPA regulations governing permit proceedings significantly limit the materials that may be considered part of the administrative record. The part 124 regulations governing this permit proceeding specify the documents that must be included in the administrative record 37 and expressly provide that the “record shall be complete on the date the

37

The administrative record for any final permit shall consist of the administrative record for the draft permit and: (1) All comments received during the public comment period provided under § 124.10 (including any extension or reopening under § 124.14); (2) The tape or transcript of any hearing(s) held under § 124.12; (3) Any written materials submitted at such a hearing; (4) The response to comments required by § 124.17 and any new material placed in the record under that section; (5) For NPDES new source permits only, final environmental impact statement and any supplement to the final EIS; (6) Other documents contained in the supporting file for the permit; and

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final permit is issued.” 40 C.F.R. § 124.18(c). Consistent with that regulation and general principles of administrative law, the Board, like the courts, is reluctant to include in an administrative record materials that were not actually before the decisionmaker at the time he or she made the decision that is under review. See Dominion I, 12 E.A.D. at 516-19 and cases cited therein. As the Board stated in Dominion I, “many courts have explained that the complete or official administrative record for an agency decision includes all documents, materials, and information that the agency relied on directly or indirectly in making its decision.” Id. at 519 (citing Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993) and Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989)). The Coalition must meet a high threshold to demonstrate that the Region improperly excluded documents from the administrative record. See Nat’l Mining Ass’n v. Jackson, 856 F. Supp. 2d 150, 155-56 (D.D.C. 2012) (explaining that to overcome the presumption that an agency properly designated the administrative record, “[c]onclusory statements will not suffice; rather, the
[petitioner] must identify reasonable, non-speculative grounds for its belief that the documents were considered by the agency and not included in the record”) (citations omitted). The Coalition has not demonstrated, or attempted to demonstrate, that the Region relied on or considered any of the supplemental documents the Coalition proposes to add to the record. Rather, the Coalition argues the opposite, suggesting that the Region “cherry picked” the record and ignored documents that did not support its determination. See March Motion at 3. In other words, the Coalition argues that the Region should have, but did not, consider this additional information. The Board does not agree that the Region should have considered these documents. First, as detailed below, many of the documents were created after the Region’s November 16, 2012 decision on the Newmarket permit, so the Region could not possibly have considered them in its decision-making. Second, some of the documents were communications among other parties that were not available to EPA (e.g., e-mails and correspondence between the State and the Coalition). Finally, none of these documents provide information of such significance that their

(7) The final permit.
40 C.F.R. § 124.18(b).

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inclusion in the record is important to reasoned decisionmaking on the Newmarket permit. Many of the documents are tangentially relevant at best (e.g., e-mails between the State and the Coalition about meetings or the drafting of their Memorandum of Agreement). Other documents, notably the affidavits and declaration of the Coalition’s consultants, see March Motion, Supp. Exs. 19-21, simply rehash arguments or offer additional opinions about scientific issues that are already covered at great length in the record. Substantively, the Board finds these documents to be unnecessarily cumulative of an already exhaustive administrative record, argumentative, and unhelpful to the resolution of the issues presented in this case. The Coalition also has failed to demonstrate that the supplemental materials should be admitted because the Region engaged in improper behavior or acted in bad faith in this matter. See March Motion at 7-11, 16; September Motion at 5-6. The standard for establishing bad faith or bias in decisionmaking is very high. Anyone alleging such behavior must “overcom[e] the presumption of honesty and integrity attaching to the actions of government decisionmakers.” Dominion I, 12 E.A.D. at 532 (quoting In re Marine Shale Processors, Inc., 5 E.A.D. 751, 788-89 (EAB 1995)). The Coalition alleges that EPA employees acted in bad faith by intentionally excluding relevant information from the administrative record and making misleading statements. See March Motion at 9-11. The documents cited, however, do not support these allegations. See id. & Supp. Exs. 2,7,9,10-11, 20, 21. The Coalition takes statements out of context, exaggerates their significance, and unjustifiably ascribes improper intentions to EPA and State employees. For example, the Coalition argues that the postdecisional February 25, 2013 Affidavit of Dean Peschel, a consultant to the Coalition, should be added to the record because it demonstrates that the Agency is “purposefully attempting to conceal a lack of scientific foundation for its regulatory approach to Great Bay permitting.” March Motion at 16. The Coalition cites Mr. Peschel’s statement that an EPA employee told him that EPA had done an “independent” analysis and was not solely relying on the Great Bay Nutrient Report in reaching its conclusion that a 3 mg/l TN effluent limit is necessary for the Newmarket permit. According to Mr. Peschel, EPA could not produce the alleged “independent analysis.” The Coalition contends that this demonstrates that EPA made an untrue statement. This conclusion is not justified, even if Mr. Peschel’s version of the facts were accepted (a question the Board does not reach). As the Region explained repeatedly in the record, it reviewed the Great Bay Nutrient Report and other available evidence and used its own scientific judgment to reach its conclusions for the Newmarket permit. The Coalition’s conclusion that this does not constitute an “independent analysis” is merely an argumentative statement of

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its own views, not a demonstration of a false statement by EPA. The Board concludes that the Coalition has failed to support its allegations that EPA employees acted in bad faith by making false or misleading statements. In light of the general rule that the record is closed at the time the Region’s permitting decision is made, the Board considers the Coalition’s specific proposed supplemental documents in two groups: (a) documents that postdated the Region’s November 16, 2012, decision on the Newmarket permit and (b) documents that predate that decision. a.

Postdecisional Documents

As explained above and in Dominion I, under general principles of administrative law, the Board, like the courts, is reluctant to include in an administrative record materials that were not actually before the decisionmaker at the time it made its decision. See Dominion I, 12 E.A.D. at 519 (quoting Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) (“To review more than the information before the [agency] at the time [the] decision was made risks * * * requiring administrators to be prescient or allowing them to take advantage of post hoc rationalizations.”)). All of the documents submitted with the Coalition’s September Motion38 and several of the documents submitted with its March Motion postdate the Region’s November 16, 2012, decision on the Newmarket permit. 39 The Board declines to add any of these documents to the administrative record in this case. As the Board has previously stated, to accept new information after the permit is issued “would be to invite unlimited attempts by [petitioners] to reopen and supplement the administrative record after the period for submission of comments has expired.” In re Dominion Energy Brayton Point, LLC, 13 E.A.D. 407, 418 (EAB 2007) (“Dominion II”) (quoting In re Gen. Motors Corp., 5 E.A.D. 400, 405 (EAB 1994)). 38

See September Motion, Supp. Exs. 24-33 (all dated subsequent to the Region issuing the final permit). 39

See March Motion, Supp. Exs. 10-11 (letter correspondence between mayors of Portsmouth, Dover, and Rochester and University of New Hampshire professors dated January 1 and February 19, 2013); id., Supp, Exs. 14-16 (Freedom of Information Act request dated December 20, 2012, and EPA responses dated November 30, 2012 (Office of Water), and January 25, 2013 (Region 1)); id., Supp. Ex. 17 (2013 PREP Report); id., Supp. Exs. 19-21 (affidavits of Dean Peschel and Thomas Gallagher, dated March 6 and February 27, 2013, respectively, and declaration of Steven C. Chapra dated February 27, 2013).

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Further, the Board finds that these documents simply reiterate arguments that the Coalition has made previously through the numerous opportunities afforded by the Agency’s public comment processes and this appeal. None present any material that would add significantly to the Board’s understanding or consideration of this matter. 40 b. Predecisional Documents The Coalition fails to explain why it did not submit the documents that predate the Region’s November 16, 2012 Newmarket permit decision to the Region before the record closed. The public comment process for the Newmarket permit offered ample opportunity to do so. Failing to raise an issue during the public comment period prevents the permit issuer from addressing it. In order to consider this issue on appeal, the Board would need to either become the first-level decision maker (contrary to the expectation that most permit decisions be finally determined at the Regional level), or remand the permit for consideration of that issue, which “would undermine the efficiency, predictability, and finality of the permitting process.” In re Upper Blackstone Water Pollution Abatement Dist., 14 E.A.D. 577, 633 (EAB 2010) (quoting In re BP Cherry Point, 12 E.A.D. 209, 219-20 (EAB 2005)). Additionally, the Board finds that many of the predecisional documents referenced in the March Motion simply reiterate arguments that the Coalition has presented to the Agency previously through the numerous opportunities afforded by the Agency’s public comment processes and this appeal. None present any material that would add significantly to the Board’s consideration of this matter. Accordingly, the Board denies the March Motion to add documents dated before November 16, 2012. 41

40

The Board further notes that the Coalition’s September Motion was filed in contravention of the Board’s February 27, 2013 order stating “[n]o further briefing will be permitted in this matter” outside of the briefs specified in that order. Feb. 27, 2013 Order at 7 (allowing for Coalition’s supplemental brief and Region’s response regarding administrative record issues, and for the Coalition to file a consolidated response to amici briefs). The Coalition’s disregard of the Board’s order caused unnecessary further delay in the resolution of this matter. The Board denies the Coalition’s September 23, 2013 Motion Requesting Leave to File a Supplement to the Administrative Record. 41

This includes the predecisional proposed supplemental exhibits referenced in the March Motion. See March Motion, Supp. Exs. 3-9 (email correspondence); id., Supp. Exs. 12-13 (letters from the mayors of Rochester, Dover, and Portsmouth to Thomas Burack,

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2. The Board Denies the Coalition’s Request to Depose Agency Employees
   and Experts
   In addition, the Coalition’s March Motion requests permission to depose three scientists who conducted peer reviews of the Great Bay Nutrient Report and five members of the Region’s staff who helped develop the Newmarket permit, in order to demonstrate that the Agency has acted in bad faith. March Motion at 2324. Neither permit nor enforcement proceedings before the Board contemplate discovery. In re Chippewa Hazardous Waste Remediation & Energy, Inc., 12 E.A.D. 346, 368 (EAB 2005) (noting that in administrative hearings, parties “do not have a constitutional right to take depositions” or conduct discovery absent a showing of prejudice, “denying the party due process,” citing McClelland v. Andrus, 606 F.2d 1278, 1286 (D.C. Cir 1979), which states that “the Administrative Procedure Act fails to expressly provide for discovery” and explains that agencies have the discretion to adopt their own rules)); see also In re Katzson Bros., 2 E.A.D. 111, 114 (CJO 1985) (“Administrative agencies are not bound by the standards of the Federal Rules of Civil Procedure.”). The Coalition has failed to demonstrate prejudice or a denial of due process that would justify its unusual request to take depositions in this appellate administrative proceeding. The administrative process prescribed by regulation has provided more than ample opportunity for the

NHDES Commissioner); id., Supp. Ex. 23 (e-mail correspondence between John C. Hall and NHDES staff). The motion to supplement the record is moot with respect to exhibits 2 and 22. Administrative record document H.77 encompasses all of exhibit 2 to the March Motion, and administrative record documents K.7, K.8, and K.40 comprise exhibit 22 to the March Motion. Compare Certified Index to the Record, As Corrected at 15, 29 & 32 (Mar. 15, 2013) with March Motion, Supp. Exs. 2 & 22. The Board also denies the Coalition’s request to require EPA to obtain and add to the record “all analyses and aerial photographs relied upon” in creating Dr. Fred Short’s one-page eelgrass survey that is included in the administrative record as A.R. K.29. March Motion, Supp. Ex. 1 at 3 (listing and briefly describing all proposed exhibits). No such records accompanied Dr. Short’s survey when he sent it to EPA. Respondent Region 1’s Opposition to the Motion to Supplement the Administrative Record and Depose Experts at 13-14. The Coalition filed a Freedom of Information Act (“FOIA”) request with EPA for “records regarding Dr. Fred Short’s 2012 eelgrass survey including any and all communications between EPA Region 1 and any other party.” See March Motion, Supp. Ex. 16 (containing Agency’s FOIA response to the Coalition on this issue, consisting of the report that is already listed at A.R. K.29). The Coalition has not demonstrated that the Region relied on or considered any other information supporting A.R. K.29, or that this information was essential. Thus, the motion to supplement the record is denied with respect to supplemental exhibit 18.

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Coalition to comment on the Great Bay Nutrient Report and the peer review reports. The Coalition has taken full advantage of those opportunities through the public comment process and through its multiple submissions on this appeal.

3. The Board Denies the Coalition’s Motion to Strike the Peer Review
   Reports of the 2009 Great Bay Nutrient Report from the Record The Coalition’s September Motion suggests that the Board should strike the peer review reports of Drs. Boynton and Howarth on the State’s Great Bay Nutrient Report from the record, alleging that one of the peer reviewers, as well as EPA employees, demonstrated bias in their evaluations of that report. September Motion at 11. As explained in Part VII.D.1 above, the Board finds that the Coalition has failed to demonstrate bias on the part of EPA employees. The Board also finds that the Coalition failed to demonstrate bias on the part of the peer reviewers. The Coalition alleges personal bias on the part of Dr. Howarth, one of the peer reviewers, based on a single comment he made in an e-mail to his contracting official when the City of Portsmouth attempted to contact him directly after the peer review was completed. 42 See id., Supp. Ex. 27, at 2-6 (including June 2010 e-mails between Dr. Howarth and the contractor who managed the peer review contract). Dr. Howarth simply opined that it was “sad” to see the comments coming from the City when its citizens are wealthy and “can probably afford to pay to clean up their discharge.” Id. at 11. This single comment, made after the peer review report was completed, is insufficient to establish that Dr. Howarth’s peer review was biased. It has no bearing on at all on Dr. Boynton’s peer review. The Board declines the Coalition’s suggestion to strike the peer review reports from the record.
4. Conclusion
   For the reasons explained above, the Board denies the Coalition’s March and September Motions in their entirety. VIII. CONCLUSION AND ORDER The Board concludes that the Region has complied with the applicable provisions of the Clean Water Act and its implementing regulations, and has acted 42

The Coalition has failed to demonstrate that the Region relied on these e-mail exchanges in issuing the Newmarket permit. Further, these e-mail exchanges were reasonably ascertainable to the Coalition during the public comment period, see September Motion, Supp. Ex. 27, at 4 (reflecting that the Coalition’s attorney John Hall was copied on part of the June 2010 e-mail exchange), and the Coalition has offered no plausible reason for not submitting them earlier for inclusion in the record.

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well within the scope of its discretion in making the scientific judgment that a permit effluent limitation of 3.0 mg/l TN is necessary to achieve New Hampshire water quality standards. The Region’s conclusion is amply supported by the administrative record in this case. The Coalition has failed to show that the Region clearly erred or abused its discretion. For all the reasons explained above, the Coalition’s petition for review of the NPDES permit issued by the Region to the Town of Newmarket, New Hampshire, reauthorizing discharges to the Lamprey River from the Town’s wastewater treatment facility, NPDES Permit No. NH0100196, is denied. So ordered.

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APPENDIX
Order Denying Motion to Dismiss (Sept. 24, 2013)

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BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC

In re:
Town of Newmarket
Wastewater Treatment Plant
Permit No. NH0100196

)
)
)
)
)
)
)
)

NPDES Appeal No. 12-05

ORDER DENYING MOTION TO DISMISS
On August 28, 2013, the Great Bay Municipal Coalition (“Coalition”), representing the municipalities of Dover and Rochester, NH, filed a Motion to Dismiss this petition, citing plans for a new peer review of a 2009 New Hampshire Department of Environmental Services (“NHDES”) report titled: “Numeric Nutrient Criteria for the Great Bay Estuary” (June 2009) (“2009 Great Bay Nutrient Report”) (A.R. K.14) to be conducted by the Coalition and NHDES. The Coalition notes that “the key scientific and factual disputes underlying the appeal all relate to whether or how nutrients have adversely impacted the Great Bay system” and that the 2009 Great Bay Nutrient Report is “at the heart of the dispute.” Petitioner’s Motion to Dismiss the Petition for Review of the Town of Newmarket NPDES Permit (“Motion to Dismiss”) at 1. According to the Coalition, the new peer review will “cover the central regulatory, scientific and factual disputes of this permit appeal” and will “render moot the legal and factual issues surrounding the prior limited peer review conducted by [the U.S. Environmental Protection Agency (“EPA”)] which excluded participation by the Coalition.” Id. The Coalition further

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contends that EPA Regional Administrator Spaulding agreed at a recent meeting to consider the outcome of the new peer review in issuing any further National Pollutant Discharge Elimination System (“NPDES”) permits to Great Bay communities. Id. The Region opposes the Coalition’s Motion to Dismiss and objects to the Coalition’s characterization of Regional Administrator Spaulding’s statement, to the extent that it suggests that EPA will delay issuing NPDES permits to other Great Bay communities until the new peer review is completed. Region 1's Response to Petitioner’s Motion to Dismiss (“Region 1’s Response”) (Aug. 28, 2013). According to the Region, the new peer review “is still in its very early stages, so it is uncertain when the peer review will be completed and what useful information it will provide.” Id. at 2. Further, the Region emphasizes that the issues in this case have been fully briefed for months and are poised for decision following an extensive commitment of resources by all parties. The Region disputes that the issues of statutory and regulatory interpretation will be mooted by the further peer review, and notes that “[t]hese issues will only have to be relitigated in the future, which would be a waste of scarce administrative and judicial resources.” Id. at 3. Conservation Law Foundation (“CLF”), participating as amicus curiae, also opposes the Coalition’s Motion to Dismiss. 1 Non-Party Amicus Filing of [CLF] in Response to Petitioner’s Motion to Dismiss (“CLF Response”) (Aug. 30, 2013). CLF contends that the Coalition’s plan for a new peer review of the 2009 Great

1

The Board hereby grants CLF’s August 30, 2013, request for leave to file its Response to Petitioner’s Motion to Dismiss.

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Bay Nutrient Report “simply has no bearing on this appeal, which is premised on, and limited to, an established administrative record.” Id. at 2. CLF also points out that significant resources already have been invested in this pending appeal and that “[a] dismissal at this eleventh hour * * * will only open the door for matters that already have been fully litigated to be re-litigated in upcoming NPDES permits anticipated to be issued by EPA (particularly permits to be issued to the Cities of Dover and Rochester, the municipalities which brought this appeal in the first place).” Id. CLF argues that “[i]n addition to greatly undermining the efficiency of the administrative and adjudicative process and further burdening administrative and judicial resources, such a result will result in delayed implementation of necessary and well-supported Clean Water Act protections in the Great Bay estuary, to the detriment of the estuary’s health.” Id. at 2-3. CLF also states that it “has been greatly troubled by the multi-pronged strategy of delay employed by the Petitioner as a means to slow the regulatory process as it relates to nitrogen pollution in the Great Bay estuary – a strategy that has included, but is not limited to, federal litigation against [EPA] (recently dismissed by the U.S. District Court for the District of Columbia), state-level litigation against [NHDES] (dismissed by the N.H. Superior Court and currently pending on appeal in the N.H. Supreme Court), and this appeal.” CLF Response at 1-2 (footnote omitted). In its Reply to the Responses from Region 1 and CLF, the Coalition “acknowledge[s] that Administrator Spalding did not agree to delay the Dover permitting process.” Petitioner’s Reply to Region 1’s Response to Petitioner’s Motion to Dismiss and Conservation Law Foundation’s Motion for Leave to

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Submit a Non-Party Amicus Filing (Sept. 9, 2013) (“Reply”) at 1. However, the Coalition asserts that its peer review process is likely to be completed by early January 2014 at the latest and that the Dover permit is not likely to be finalized until after the end of 2013. Therefore, the Coalition contends, “EPA’s primary concern is misplaced.” Id. at 1. The Coalition further asserts that a possible outcome of its peer review is a conclusion that “(1) nutrients are not the likely cause of periodic low dissolved oxygen and eelgrass population decline within the Great Bay system and/or (2) the 2009 Numeric Nutrient Criteria are not based on reliable scientific analysis.” Id. at 2. Finally, the Coalition asserts that “[a]n adverse decision for Petitioners [in this case] would cause the Coalition to file an appeal to the First Circuit resulting in ‘further delay’ of the implementation of the Newmarket permit.” Id. at 2-3 The Environmental Appeals Board (“Board”) finds considerable lack of clarity in the Coalition’s position as to its plans for further litigation in this matter if the Board were to grant its motion to dismiss. Its statement in its Reply that it will appeal any adverse decision issued by the Board, causing further delay in the Newmarket permit, is inconsistent with the usual posture of a petitioner who wishes to end all litigation of a matter. 2 Further, the Coalition appears to be placing

2

To the extent that the Coalition is suggesting that the Newmarket permit would not become final in the event of a judicial appeal, it is incorrect. The permit decision becomes final agency action, and goes into effect immediately, upon completion of administrative proceedings and issuance of the final permit by the Regional Administrator following action by the Board. 40 C.F.R. § 124.19(l)(2). It is unclear whether the Coalition’s implied threat to continue to delay the Newmarket permit reflects an intent to seek a stay of the permit on appeal.

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considerable reliance on the expectation that its new peer review of the 2009 Great Bay Nutrient Report will be completed before further Great Bay NPDES permits are issued, that the new peer review will change the scientific conclusions from that Report, and that the new peer review will lead to a different result for future permits (most notably, the City of Dover’s permit). If all those expectations are not met, as appears quite possible, the Coalition is clearly signaling its intention to continue to litigate what it has identified as the key issue involved in this case – the scientific defensibility of the 2009 Great Bay Nutrient Report and the scope of EPA’s legal authority and discretion to consider that Report in setting nitrogen limits in NPDES permits. 3 The cities represented by the Coalition in this matter (Dover and Rochester) have demonstrated their resolve to continue litigation of these issues by seeking to reopen their federal district court litigation, City of Dover v. U.S. Environmental Protection Agency, No. 12-CV-01994 (D.D.C., July 30, 2013), following the recent dismissal of that action. The cities’ proposed amended complaint seeks judicial review of the scientific defensibility of the 2009 Great Bay Nutrient Report and the scope of EPA’s authority and discretion to rely on that Report in making permitting decisions. Further, the proposed amended complaint requests an injunction against EPA’s ability to issue or enforce permit limits relying on the 2009 Report, and specifically lists the Newmarket permit among the NPDES permits at issue. See Proposed Am. Compl. at ¶ 68, D, H, at 15, 23. In addition, the Coalition cities are

3

See, e.g., City of Dover v. EPA, No. 12-CV-01994 (D.D.C., July 30, 2013), Proposed Am. Compl. ¶¶ 5, 10, D, H., at 2-3, 4-5, 23.

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continuing to pursue their state court challenge to the 2009 Great Bay Nutrient Report on appeal to the New Hampshire Supreme Court, following dismissal by the N.H. Superior Court for lack of justiciability. City of Dover. v. NHDES, No. 2012-CV-00212 (N.H. Super. Ct., Nov. 7, 2012), appeal docketed, No. 2013-0119 (N.H. July 16, 2013). These actions make it abundantly clear that the Coalition plans to continue to litigate the key issues that it has raised to the Board in this matter. Petitioner’s Motion to Dismiss does not reflect a decision to cease and withdraw from litigation, but simply a desire to move the Coalition’s challenge to a different forum and/or to delay the Board’s ability to review the key issues that the Coalition has raised in this matter.

Under these circumstances, the Board cannot conclude that the

controversy over the key issues that the Coalition has raised in this matter is resolved or that the issues are mooted by the Coalition’s request to withdraw its petition. Under the governing regulations, it is within the Board’s discretion to grant or deny a petitioner’s motion to dismiss a petition. There is no unilateral right to withdraw a petition. See 40 C.F.R. § 124.19(k) (providing that “Petitioner, by motion, may request to have the Environmental Appeals Board dismiss its appeal.”). 4 The rule does not require the Board to grant that request. Moreover, the Board has full authority and discretion to manage its docket. See 40 C.F.R. §

4

The EAB recently revised its regulations governing permit appeals before the Board, 40 C.F.R. § 124.19, and the provisions of the revised rule took effect on March 26, 2013, and are applicable to any document filed with the Board on or after that date, including the Coalition’s Motion to Dismiss.

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124.19(n). 5 While the Board generally will grant requests for voluntary dismissal, in the interests of efficiency and justice, there may be circumstances under which it is appropriate to decline to do so. See, e.g., In re Desert Rock Energy Co., 14 E.A.D. 484, 496 (EAB 2009). In Desert Rock, the Board explained the requirement that permit issuers must seek Board permission to withdraw a permit when a petition for review of that permit has been under Board review for some time: It allows the Board to decide whether, after the Board has granted review and performed a substantial review of the case, it would be more appropriate for the Board to issue a final decision on the merits or grant the voluntary remand request. Thus, for example, in cases where significant time has passed following the submission of final briefs by all the parties, the Board may be in a position to issue a 5

See In re Peabody Western Coal Co., CAA Appeal No. 10-01 (EAB Aug. 13, 2010) (Order Granting Motion for Voluntary Remand) (articulating Board’s inherent authority to rule on motions and fill other “gaps” in its procedural rules); see also, e.g., In re MGP Ingredients of Illinois, Inc., PSD Appeal No. 09-03 (EAB Jan. 8, 2010) (Order Imposing Sanctions, Setting Final Deadline for Filing Response and Scheduling Status Conference) (imposing page-limit sanction against permit issuer and ordering appearance at a status conference in response to “systematic failure to timely assemble the administrative record, provide representation and defend a permit issued”); In re Desert Rock Energy Co., LLC, PSD Appeal Nos. 08-03 to 08-06 (EAB May 21, 2009) (Order Denying Motion to Participate) (initially denying amici’s motion to participate filed two months after the deadline for submission without explanation or justification). Further support for the Board’s inherent authority to manage its docket may be found in general and well-established principles of administrative law. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 543-44 (1978) (“Absent constitutional constraints or extremely compelling circumstances the administrative agencies should be free to fashion their own rules of procedure to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.”); see also American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539 (1970) (explaining that it is “always within the discretion of * * * an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it.”).

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final decision at the time of a request for voluntary remand. See Indeck-Elwood 2004 Stay Order at 9 and n.16 (noting that a stay – rather than a remand – was appropriate where the Board has already “made considerable headway in its examination of the record”). Id. Similarly, in the federal courts, a motion by an appellant to dismiss an appeal “is generally granted, but may be denied in the interest of justice or fairness.” See Fed. R. App. P. 42(b); Albers v. Eli Lilly & Co., 354 F.3d 644, 646 (7th Cir. 2004) (stating that “[d]oubtless there is a presumption in favor of dismissal but the procedure is not automatic,” and denying plaintiff’s motion to dismiss where plaintiff’s counsel was seeking to gain a litigation advantage in future cases by avoiding adverse precedent); Am. Auto. Mfrs. Ass’n v. Comm’r, Mass. Dep’t. of Env’l. Prot., 31 F.3d 18, 22 (1st Cir. 1994) (allowing dismissal under the facts of that case, but noting that dismissal may not be warranted in some circumstances, such as an attempt to evade appellate review or to frustrate orders governing the conduct of appeal); Twp. of Benton. v. Cty. of Berrien, 570 F.2d 114, 118-19 (6th Cir. 1978) (denying plaintiff’s motion to dismiss where the court would have to address the relevant issues in any event due to co-appellants’ intent to continue their appeals); Ford v. Strickland, 696 F.2d 804, 807 (11th Cir.), cert. denied, 464 U.S. 865 (1983) (denying late request for voluntary dismissal from a death row inmate, in part, because the case involved issues that repeatedly occur in capital cases); see also Suntharalinkam v. Keisler, 506 F.3d 822, 823 (9th Cir. 2007) (Kozinski, J., dissenting) (arguing that the majority’s dismissal of the appeal in that case upon appellant’s motion made after oral argument threatened the integrity of the appellate process based on the conclusion that appellant’s counsel’s motivation was

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to evade appellate determination of questions that could undermine present and future petitions of his other clients). The Board will consider similar factors to those considered by the federal courts to determine whether to exercise its discretion to grant or deny the Petitioner’s motion to dismiss in this case, including whether the motion is opposed, whether it is untimely in light of the stage of the proceedings, whether the Board is likely to have to address the issues presented in any event, whether Petitioner may be seeking dismissal for improper purposes such as evading Board review or improperly attempting to manipulate the administrative and judicial review system, and other factors as justice may require. As noted above, both the Region and CLF oppose Petitioner’s motion to dismiss, on various grounds, including the concern that the issues of statutory and regulatory interpretation raised in the petition will not be mooted by further peer review and will have to be relitigated in the future, causing further delay. The Board agrees with the Region that this would be a waste of scarce administrative and judicial resources. On the issue of timeliness, the Board notes that Petitioner’s motion to dismiss was filed eight months after the filing of the petition and five months after the completion of extensive briefing (including multiple replies, sur-replies and motions filed by Petitioner). The Board already has invested considerable resources in reviewing the myriad legal and factual arguments raised by Petitioner and an extensive and complicated administrative and scientific record, and expects to issue a final decision on the merits in the near term.

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While these factors alone would not dissuade the Board from dismissing a case if dismissal would finally resolve all issues, that does not appear to be the case under the unusual circumstances presented here. In this case, the Coalition and the cities it represents have made clear their intent to continue litigating the key issues they have raised to the Board, either in the judicial forum or in future permit appeals to the Board, or both. Petitioner’s motion to dismiss this case cites its plans for a new peer review of the 2009 Great Bay Nutrient Report as its reason for seeking dismissal. Petitioner contends that the new peer review will “cover the central regulatory, scientific and factual disputes of this permit appeal” and will “render moot the legal and factual issues surrounding the prior limited peer review conducted by EPA which excluded participation by the Coalition.” Motion to Dismiss at 1. This claim is, at best, highly speculative. The record shows that there already were two peer reviews of the 2009 Report by nationally-recognized experts. Additional peer reviews, even if they support the Coalition’s views as the Coalition seems to expect, would not “moot” the prior reviews. New and conflicting scientific opinions would set up a “battle of the experts,” requiring additional review and evaluation by the Region and the State to determine whether their prior assessments of the reliability of the 2009 Report should be changed. This could be a complex and timeconsuming process, and its outcome is unpredictable. The Board must consider the potential effect on other parties and the public of granting or denying Petitioner’s motion to dismiss at this late stage of the proceedings. Certainly dismissal of this petition with prejudice would have the

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beneficial effect of providing certainty and finality for the permittee, the Town of Newmarket, by allowing its NPDES permit to become immediately final and precluding Petitioner’s threatened judicial appeal. 6 That certainty is clouded, however, by the Coalition cities’ continuing federal district court litigation, which includes a request for an injunction against issuance or enforcement of the Newmarket NPDES permit. See, e.g., City of Dover v. EPA, No. 12-CV-01994 (D.D.C., July 30, 2013), Proposed Am. Compl. ¶¶ 68, D, H., at 15, 23. Newmarket’s permit also will become final if the Board denies Petitioner’s motion to dismiss and affirms the Region’s permitting decision.

See 40 C.F.R. §

124.19(k)(2). 7 In that event, however, Newmarket would continue to be subject to some future uncertainty in light of Petitioner’s threat to appeal an adverse decision by the Board. 8 Immediate dismissal of the petition also could have a beneficial environmental effect if it would expedite implementation of nitrogen controls on the Newmarket plant’s discharges. Given the late stage of the proceedings before the Board in this matter, however, it is not at all apparent that there would be any

6

If this appeal is dismissed without a decision on the merits, the Coalition would not have exhausted its administrative remedies, which is a prerequisite for seeking judicial review. See 40 C.F.R. § 124.19(l). 7

The Coalition is incorrect in suggesting in its Reply that Newmarket’s permit will not become final if the Coalition appeals an adverse Board decision in this matter. See Reply at 3. 8

While the permit would remain final pending appeal, absent a stay, there would remain some risk of an adverse decision on appeal and remand that could change the terms of the permit.

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significant difference in this respect between an immediate dismissal of the petition and issuance of an affirming decision on the merits. A Board decision on the merits of the key issues raised by the Coalition could provide some guidance and lessen uncertainty as to how EPA will proceed for other Great Bay communities whose NPDES permits could be affected by the Coalition’s continuing litigation over the Region’s use of the 2009 Great Bay Nutrient Report. While EPA decisions on all permits are made on a case-specific and site-specific basis, the scientific defensibility of the 2009 Great Bay Nutrient Report could be a key common issue for many permits. A Board decision on that issue would, at a minimum, provide EPA’s final position with respect to whether the existing administrative record supports the scientific validity of that Report and the Region’s consideration of that Report in determining permit limits. In addition, a Board decision could provide helpful analysis for the courts’ review of these complex scientific issues in the likely event that the Coalition continues to bring this issue to the courts for resolution. On balance, under the circumstances presented in this unusual case, the Board concludes that justice will be best served by denying Petitioner’s belated motion to dismiss this action. In light of Petitioner’s continuing litigation of the key issue it has raised to the Board, the important public interest in resolving this controversy as soon as possible to protect the health of the Great Bay Estuary, and the significant loss of efficiency and scarce administrative resources that would result if the Board were to set aside this complex matter, only to have to take it up

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again in the future, the Board will exercise its discretion to manage its docket by completing its consideration of the key issues raised by Petitioner in this matter. Accordingly, Petitioner’s Motion to Dismiss is DENIED.

Dated: September 24, 2013

ENVIRONMENTAL APPEALS BOARD
By: __ /S/______
Catherine R. McCabe
Environmental Appeals Judge

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