Town of Newmarket Wastewater Treatment Plant (Board decision, January 7, 2014)

Plain-English summary

The Town of Newmarket operated a wastewater treatment plant under an NPDES permit issued by EPA Region 1. The Great Bay Municipal Coalition moved for reconsideration after the Board denied review of the permit's nitrogen effluent limit. The Coalition argued that the Board used the wrong review standard, misread a federal court decision, and misunderstood the requirements for setting nitrogen limits. The Board found that the motion repeated earlier arguments, did not show a manifest error of law or fact, and did not establish that the later district court ruling affected the Board's earlier decision. The Board denied reconsideration, leaving its December 2, 2013 order denying review in place, with no monetary penalty imposed by this order.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 122.44, 124.19, and 131.3; 33 U.S.C. § 1313; 5 U.S.C. § 706
• Outcome: Motion for reconsideration denied, leaving the Board's December 2, 2013 order denying review in place.
• Key point: Reconsideration is not an opportunity to reargue an appeal. The moving party must identify a demonstrable error of law or fact.

Full text (EPA EAB public release)

                  ENVIRONMENTAL APPEALS BOARD
         UNITED STATES ENVIRONMENTAL PROTECTION A
                         WASHINGTON, D.C.
                                                                                 JAN     2014
                                         )

In re: )
)
Town of Newmarket ) NPDES Appeal No. 12-05 Wastewater Treatment Plant )
)
Pennit No. NHO 100196 )

             ORDER DENYING MOTION FOR RECONSIDERATION

     On December 2, 2013, the Environmental Appeals Board ("Board") issued an Order

Denying Review of a Clean Water Act National Pollutant Discharge Elimination System pennit

that the U.S. Environmental Protection Agency ("EPA" or "Agency") Region 1 ("Region")

issued to the Town of Newmarket. Order Denying Review (Dec. 2,2013) ("December 2

Order"). The Board received a timely motion for reconsideration from petitioner Great Bay

Municipal Coalition ("Coalition") on December 16,2013. Petitioners' [sic] Motion for

Reconsideration (Dec. 16, 2013) ("Motion"). The Region filed a response opposing the

Coalition's Motion on January 3,2014. As explained in more detail below, the Board denies the

Coalition's Motion.

     A motion for reconsideration "must set forth the matters claimed to have been

erroneously decided and the nature of the alleged errors." 40 C.F.R. § 124.19{m).

Reconsideration is generally reserved for cases in which the Board is shown to have made a

demonstrable error, such as a mistake of law or fact. In re KnaufFiber Glass, GmbH, PSD

Appeal Nos. 98-3 through 98-20, at 2-3 (EAB Feb. 4, 1999) (Order on Motions for

Reconsideration); In re Arizona Municipal Storm Water NPDES Permits, NPDES Appeal No. 97-3, at 2 (EAB Aug. 17, 1998) (Order Denying Motion for Reconsideration). The

reconsideration process "should not be regarded as an opportunity to reargue the case in a more

convincing fashion." In re S. Timber Prods., Inc., 3 E.A.D. 880, 889 (JO 1992), quoted in In re

KnaufFiber Glass, GmbH, PSD Appeal Nos. 99-8 through 99-72, at 2 (Feb. 10, 2000) (Order

Denying Motions for Reconsideration); see also In re Town ofAshland Wastewater Treatment

Plant, NPDES Appeal No. 00-15, at 2 (EAB Apr. 9,2001) (Order Denying Motion for

Reconsideration) (citing Knauf, at 2 (Feb. 10, 2000)). Federal courts employ a similar standard.

See, e.g., Publishers Res., Inc. v. Walker-Davis Publ'ns, Inc., 762 F.2d 557,561 (7th Cir. 1985)

("Motions for Reconsideration serve a limited function: to correct manifest errors of law or fact

or to present newly discovered evidence. Such motions cannot in any case be employed as a

vehicle to introduce new evidence that could have been adduced during the pendency of the

[original] motion. * * * Nor should a motion for reconsideration serve as the occasion to tender

new legal theories for the first time.") (citation omitted); Ahmed v. Ashcroft, 388 F.3d 247,249

(7th Cir. 2004).

   Petitioner's Motion largely reiterates the same arguments that it made in its petition and

multiple replies filed in this proceeding. Petitioner fails to demonstrate that the Board made a

manifest error of law or fact, and instead expresses its disagreement with the Board's

conclusions. This is insufficient to meet the Board's standard for reconsideration.

   Petitioner's Motion contains a number of allegations of legal error, including, most

significantly, that the Board erred by: (1) applying the wrong standard of review to the Region's

pennit decision, see Motion at 9, and (2) misinterpreting the decisions of the U.S. District Court

for the District of ColulTlbia in City ofDover v. Environmental Protection Agency. Id. at 14.

                                            -2­

The Board does not agree.

   Petitioner contends that the Board's December 2 Order applied an improper standard of

review by presuming that the Region's responses to comments were correct and failing to seek

verification and support for those responses in the administrative record. Id. at 9. This is an

inaccurate characterization. As reflected in the detailed citations to the record in the December 2

Order, the Board carefully reviewed the record on each of the issues raised and concluded that

the Region's decisions and explanations were rational, persuasive and supported by the record.

Petitioner appears to be confused about the standard of review that applies in this proceeding,

suggesting that the burden is on the Region, and now on the Board, to refute their contrary

conclusions. 1 As explained in the regulations and the Board's December 2 Order, Petitioner has

the burden of proof on this appeal, and is required to demonstrate that the Region made a clear

error of law or fact or abused its discretion in selecting the numeric effluent limitation for

nitrogen in the Town of Newmarket' s permit. 40 C.F.R. § 124.19; see December 2 Order at 5..8.

After thoroughly examining Petitioner's numerous arguments and the voluminous record in this

matter, the Board concluded that Petitioner had failed to do so.

   Petitioner's Motion also contends that the Board has misinterpreted the District Court for

the District of Columbia's decision in City ofDover et al. v. EPA, No. 12..CV..01994..JDB

(D.D.C. July 30, 2013). Petitioner belatedly brings to the Board's attention a new decision in

that case that was issued on November 15,2013, more than two weeks prior to the issuance of

    1 See, e.g., Motion at 13 ("The Board must cite to evidence that forms a sufficient basis

to reject the highly specific factual/scientific objections and technical flaws identified by the Coalition in its original comments and raised with particularity on this appeal.").

                                             -3­

the Board's December 2 Order.2 Petitioner has provided no explanation or justification for its

failure to bring this second decision to the Board's attention before the Board issued its decision.

In any event, the Board finds that the district court's November 15", 2013 decision, permitting the

plaintiffs in that action to file an amended complaint, has no effect on the Board's December 2

Order. The Board's Order cited the district court's July 30, 2013 ruling that plaintiffs' original

complaint had failed to state a claim for relief. 3 The district court's November 15 decision did

not disturb that ruling, but simply allowed the plaintiffs to file a new complaint alleging an

alternative theory. The district court has not yet ruled on the plaintiffs' new claim.4 Therefore,

the Board concludes that the district court's November 15 ruling does not affect the Board's

December 2 decision in this matter.

     2 On July 30,2013, the district court granted EPA's motion to dismiss the complaint in

City ofDover v. EPA for failure to state a claim, with prejudice. On August 20, 2013, the plaintiffs (the cities of Dover, Portsmouth and Rochester) moved to set aside the judgment and for permission to file an amended complaint. On November 15,2013, the district court set aside its ruling of dismissal with prejudice and permitted the plaintiffs to file an amended complaint asserting an alternative legal theory.

   3 See December 2 Order at 62-63 (citing district court's July 30 memorandum opinion

affirming that the Great Bay Nutrient Report is not a water quality standard because it is not a provision of state law as required by 40 C.F .R. § 131.3(i), and thus no mandatory duty existed for EPA to review the Report as a revised water quality standard under 33 U.S.C. § 1313(c)(2)(a), (c)(3)); id. at 74 (citing district court's July 30 memorandum opinion that states "Accordingly, there is no nondiscretionary duty for EPA to undertake any specific action to promote public participation, aside from the one expressly mentioned in the text-promulgating regulations-an action that EPA has undisputedly carried out here.") (emphasis in original).

    4 Plaintiffs' new claim, asserted under the Administrative Procedure Act, 5 U.S.C.

§ 706(2), alleges that EPA's 2009 and 2011 actions in approving the State of New Hampshire's impaired waters lists for nitrogen exceeded EPA's statutory authority and were arbitrary, capricious, and an abuse of discretion. City ofDover et al. v. EPA, No. 12-CV-01994-JDB, at 19-22 (Nov. 15,2013) (Amended Complaint). As the Board noted in its December 2 Order, EPA's approvals of the state's impairment listings were separate agency actions that are not before the Board in this appeal of the Region's permitting decision for the Newmarket sewage treatment plant. December 2 Order at 62 n.28.

                                             -4­

Petitioner's Motion also reflects its continuing confusion regarding the legal standards

that govern the key issues raised in the petition. Petitioner argues erroneously that: (1) the

Region was required to establish a "violation" of the State of New Hampshire's water quality

standards for nitrogen before it is legally authorized to set a permit effluent limitation for

nitrogen in the Newmarket permit, and (2) that the Region must demonstrate that nitrogen

"caused" an impairment of the designated uses of the receiving waters of the Lamprey River and

the Great Bay of New Hampshire. This is an incorrect characterization of the applicable legal

standard. As explained in the Board's December 2 Order, the Region was required to establish

an effluent limitation for nitrogen upon determining that there was a "reasonable potential" for

nitrogen in the Newmarket plant's discharge to "cause or contribute to" an exceedance of the

State's narrative water quality standard. 40 C.F.R. §122.44(d)(1)(ii); N.H. Code Admin. R. Ann.

DES 1702.11, 1703.01, 1703.14 (2013). The Board found that the record supports that

determination, as explained in the December 2 Order.

    Petitioner's Motion also reiterates and emphasizes its contention that the scientific record

does not demonstrate that reducing nitrogen levels in the Lamprey River will restore the river's

eelgrass population. This argument similarly mischaracterizes the Region's obligations as the

permitting authority for the Newmarket plant. The Clean Water Act does not require permitting

authorities to guarantee that their actions will result in the environmental outcomes that are

ultimately desired. Permitting authorities are required to adhere to the requirements of the statute

and the regulations, including the requirement to establish numeric effluent limits in permits

when necessary to achieve water quality standards. When presented with the unavoidable

scientific uncertainties involved in establishing numeric permit limits based on narrative water

quality standards, permitting authorities must use their best professional and scientific judgment

                                              -5­

based on the information that is currently available. The Board continues to believe that the

Region has done exactly that in the case of the Newmarket permit.

   Petitioner's Motion for Reconsideration is denied.

   So ordered. 5

                                                 ENVIRONMENTAL APPEALS BOARD



                                                 By:

                                                        Environmental Appeals Judge




   5The three-member panel deciding this matter is composed of Environmental Appeals

Judges Leslye M. Fraser, Catherine R. McCabe, and Kathie A. Stein. See 40 C.F.R. § 1.25(e)(l).

                                           -6­

CERTIFICATE OF SERVICE

   I hereby certify that copies of the forgoing Order Denying Motion for Reconsideration in

the matter of Town of Newmarket, New Hampshire Wastewater Treatment Plant, NPDES Appeal No. 12-05, were sent to the following persons in the manner indicated.

By First Class Mail Return Receipt Requested:

John C. Hall
1620 I Street, NW
Suite 701
Washington, DC 20006

Evan J. Mulholland
Assistant Attorney General
New Hampshire Department of Justice
33 Capitol Street
Concord, NH 03301

Thomas F. Irwin
CLF New Hampshire
Conservation Law Foundation
27 North Main Street
Concord, NH 03301

By EPA Pouch Mail:

Samir Bukhari
U.S. EPA, Region 1
Office of Regional Counsel (ORA 18-1)
5 Post Office Square, Suite 100
Boston, MA 02109-3912

Dated: Ipa If Annette Duncan
Secretary