CertainTeed Corporation (Board decision, May 7, 2015)

Read the official release (epa.gov)

Plain-English summary

CertainTeed Corporation operated a fiberglass and asphalt roofing-materials facility in Norwood, Massachusetts, that discharged to the Neponset River under an NPDES permit issued by EPA Region 1. The company challenged the timing of grab sampling, whole effluent toxicity testing requirements, and total suspended solids limits at four outfalls. The Board denied review of the grab-sampling issue because CertainTeed had not raised that issue during the permit comment period. It rejected the company's reading of the toxicity-testing provisions and denied review of the total suspended solids arguments because they did not confront the Region's response to comments or show clear error. The permit therefore remained in effect.

Decision snapshot

• Cited authorities: 33 U.S.C. §§ 1311, 1313, 1341, 1342; 40 C.F.R. §§ 122.44, 124.13, 124.19, 124.53, 125.3, 130.2, 130.7, 131.6, 131.10-13
• Outcome: The Board denied the petition for review, leaving NPDES Permit No. MA0003531 in effect.
• Key point: A permit petitioner must preserve issues during the comment process and substantively explain why the permit issuer's response was clearly erroneous or warrants review.

Full text (EPA EAB public release)

F I L E D
MAY 7, 2015
Clerk, Environmental Appeals Board
INITIALS [illegible]

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.

                                           )

In re: )
)
CertainTeed Corporation )
)
Permit No. MA0003531 )

                              ORDER DENYING REVIEW


                              I. STATEMENT OF THE CASE

      CertainTeed Corporation ("CertainTeed") petitions the Environmental Appeals Board

("Board") to review certain conditions of a National Pollutant Discharge Elimination System

("NPDES") permit ("Permit") that authorizes discharges from a facility that manufactures and

distributes fiberglass/asphalt roofing materials ("Facility") in Norwood, Massachusetts, operated

by Bird Incorporated d/b/a CertainTeed Corporation. The Facility discharges into the Neponset

River. The Neponset River is part of the Boston Harbor watershed and flows into Dorchester

Bay. The U.S. Environmental Protection Agency ("EPA") Region I ("Region") issued the

permit on January 13, 2015, pursuant to Clean Water Act ("CWA") section 402, 33 U.S.C.

§ 1342.

      CertainTeed challenges grab sampling requirements at all four outfalls authorized by the

Permit, whole effluent toxicity testing requirements at two outfalls, and the effluent limits for

total suspended solids at three outfalls. For the reasons discussed below, the Board denies the

petition for review.

                 II. STATUTORY AND REGULATORY BACKGROUND

    CWA section 301(a), 33 U.S.C. § 1311(a), prohibits the discharge of pollutants to waters

of the United States unless authorized by, among other things, an NPDES permit. EPA

implements the federal NPDES program at CWA section 402, 33 U.S.C. § 1342, by issuing

permits that allow for the discharge of pollutants subject to limitations and requirements imposed

pursuant to CWA sections 301, 304, 306, 401, and 403, 33 U.S.C. §§ 1311, 1314, 1316, 1341,

and 1343. States, Territories, or Tribes may also apply for EPA approval to implement all or

parts of the NPDES program in lieu of EPA. CWA § 402(b), 33 U.S.C. § 1342(b). Here, EPA

has not authorized the Commonwealth of Massachusetts to issue NPDES permits; therefore, EPA

• specifically, the Region- is the relevant permitting authority. 1

   Effluent limitations in NPDES permits may be either "technology-based" or "water
  

quality-based." See CWA §§ 301, 303, 304(b), 402, 33 U.S.C. §§ 1311, 1313, 1314(b), 1342;

40 C.F.R. pts. 122, 125, 131. Technology-based limitations, generally developed on an

industry-by-industry basis, reflect a specified level of pollutant-reducing technology available

and economically achievable for the type of facility being permitted. CWA § 301(b), 33 U.S.C.

§ 1311 (b). Technology-based effluent limitation requirements "represent the minimum level of

control that must be imposed in a permit," 40 C.F.R. § 125.3(a), and may be developed for a

particular facility in one of two ways. If EPA has developed industrial category-wide (or

    1
     The Commonwealth maintains separate, independent permitting authority over surface

waters pursuant to the Massachusetts Clean Water Act, see Mass. Gen. Laws Ann. ch. 21 § 43, and the Region and the Massachusetts Department of Environmental Protection ("MassDEP") typically coordinate their respective permitting efforts and simultaneously issue two permits using a single document. See generally In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 497 n.5 (EAB 2006). MassDEP issued a State permit with limitations identical to those in the Permit challenged in this proceeding. Response at 4 n.1.

                                             -2-

subcategory-wide) effluent limitations - referred to as "effluent limitation guidelines" ("ELGs")

• such limits must be included in that facility's permit. 40 C.F.R. § 125.3(c)(1); see generally

E.I du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977). Where EPA has not developed an

ELG for a particular industry, or has not addressed a particular pollutant discharged by an

industry, the Clean Water Act authorizes EPA to use its best professional judgment ("BPJ") to

develop permit limits based on a case-by-case, site-specific application of the relevant

technology-based level of control. See CWA § 402(a)(l), 33 U.S.C. § 1342(a)(l); 40 C.F.R.

§ 125.3(c)(2); Natural Res. Def Council v. EPA, 859 F.2d 156, 199 (D.C. Cir. 1988) ("BPJ

limits constitute case-specific determinations of the appropriate technology-based limitations for

a particular point source.").

    Water quality-based effluent limits, on the other hand, are designed to ensure that State

water quality standards2 - the water quality goal for a water body developed by a State and

approved by EPA - are met when technology-based limitations alone are not sufficient for this

purpose. In particular, CWA section 301 requires that permits include any effluent limitations

"necessary to meet water quality standards." CWA § 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C);

see also 40 C.F.R. § 122.44(d)(l)(i) (requiring effluent limits to control "all pollutants or

pollutant parameters" that are or may be discharged at a level that causes or has the "reasonable

potential to cause or contribute to an excursion above any State water quality standard").

    2
     Water quality standards consist of three mandatory components: beneficial designated

uses for a water body or water body segment, numeric and/or narrative water quality criteria sufficient to protect the assigned designated uses, and anti-degradation requirements to ensure that once a use is attained, it will not be degraded. 40 C.F.R. §§ 131.6, .10-12; see CWA
§ 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A). States may also "include in their State standards[] policies generally affecting their application and implementation." 40 C.F .R. § 131.13

                                               -3-

Therefore, if the permitting authority determines that the technology-based limitations alone are

insufficient to ensure that State water quality standards are met, it must develop water quality-

based effluent limits in the permit.

    CWA section 303(d) requires States to identify water body segments that fail to meet

State water quality standards despite implementation of all requisite effluent limitations on

discharges in the affected waters. CWA § 303(d)(l )(A), 33 U.S.C. § 1313(d)(l )(A); see

40 C.F.R. §§ 130.2G), .7(d). For such "water-quality limited" or "impaired" waters, States must

develop a total maximum daily load ("TMDL") for each relevant pollutant. 3 CWA

§ 303(d)(l)(C), (d)(2), 33 U.S.C. § 1313(d)(1)(C), (d)(2). Where a TMDL for a particular

pollutant exists for a receiving water body, the permitting authority must determine whether a

wasteload allocation has been assigned to a point source seeking an NPDES permit. 40 C.F.R.

§§ 130.2(h), .7(a). If a wasteload allocation has been so assigned, the permit issuer must

calculate a water quality-based effluent limit for the pollutant that is "consistent with the

assumptions and requirements" of the wasteload allocation. Id § 122.44(d)(l)(vii)(B).

    When determining the final effluent limitations for reissued permits, the permitting

authority must consider whether any of the limitations are less stringent than limitations on the

same pollutant in the previous NPDES permit. In general, a permitting authority may not renew,

    3
     TMDLs establish specific wasteload allocations for point sources that discharge to the

water body in question, as well as load allocations for nonpoint sources in the watershed. 40 C.F.R. § 130.2(i). TMDLs also include natural background concentrations of the pollutants in question and incorporate margins of safety to account for scientific uncertainties. Id
§§ 130.2(g)-(i), .7(c)(l).

   A "point source" is "any discemable, confined and discrete conveyance * * * from which

pollutants are or may be discharged." CWA § 502(14), 33 U.S.C. § 1362(14). A "nonpoint source" is any source of water pollution that is not a "point source."

                                              -.4-

reissue, or modify a permit with less stringent limitations or conditions than those contained in

the previous permit unless doing so complies with the Clean Water Act's "anti-backsliding"

requirements. CWA § 402(0), 33 U.S.C. § 1342(o); 40 C.F.R. § 122.44(l). The anti-backsliding

provisions prohibit the relaxation of permit limits, standards, and conditions except under certain

circumstances. CWA § 402(o)(2), 33 U.S.C. § 1342(o)(2).

   Finally, before issuing an NPDES permit, EPA must obtain (or a State may waive) State

certification that the permit contains all conditions necessary to assure compliance with the Clean

Water Act and attain the State's water quality standards. CWA § 401(a)(l), 33 U.S.C.

§ 1341(a)(l); 40 C.F.R. §§ 124.53(a), .55(a)(2).

                     III. PROCEDURAL AND FACTUAL HISTORY

   CertainTeed manufactures fiberglass/asphalt roofing materials at the Facility. U.S. EPA

Region 1, Fact Sheet, Draft National Pollutant Discharge Elimination System (NPDES) Permit

to Discharge to Waters of the United States Pursuant to the Clean Water Act (CWA), NPDES

Permit No. MA0003531, at 5 (May 27, 2014) (Administrative Record ("A.R.") 7) ("Fact Sheet").

The Permit, which is a renewal of a 2005 permit, authorizes discharge of process water, contact

and noncontact cooling water, and stormwater runoff from four outfalls into the Neponset River.

Id at 6. For the segment of the Neponset River into which the Facility discharges, the

Commonwealth of Massachusetts has developed a Total Maximum Daily Load pursuant to CWA

§ 303(d) for several pollutants, including sedimentation/siltation, total suspended solids ("TSS"),

and turbidity. Id. at 6-7. There are no quantitative water quality criteria for TSS in the

                                               -5-

Massachusetts water quality standards, id. at 14-15; however, the applicable narrative criterion

provides:

    These waters shall be free from floating, suspended and settleable solids in
    concentrations and combinations that would impair any use assigned to this [class
    of waters] that would cause aesthetically objectionable conditions or that would
    impair the benthic biota or degrade the chemical composition of the bottom.

314 Code. Mass. Regs. 4.05(3)(b)(5) (providing solids criterion for waters "designated as a

habitat for fish, other aquatic life, and wildlife * * * and for primary and secondary contact

recreation.").

    During the week of May 27, 2014, the Region and the Massachusetts Department of

Environmental Protection ("MassDEP") issued a Draft Permit and Fact Sheet, and solicited

public comment on the Draft Permit. In addition to describing the Facility, its location, the

discharge, and the receiving water, the Fact Sheet identified the statutory and regulatory authority

for the Draft Permit and explained how the Region derived the effluent limits pursuant to those

legal authorities. See generally Fact Sheet. CertainTeed submitted the only comments to the

Draft Permit, to which the Region and MassDEP responded. See U.S. EPA Region 1 &

MassDEP, Response to Public Comments NPDES Permit #MA0003531(Jan.13, 2015)

(A.R. B.l) ("RTC").

    On January 13, 2015, the Region issued the Permit to CertainTeed. See U.S. EPA

Region 1 & MassDEP, Authorization to Discharge Under the National Pollutant Discharge

Elimination System, NPDES Permit No. MA0003531 (Jan. 13, 2015) (A.R. A.1) ("Permit").

CertainTeed petitioned the Board to review Permit conditions pertaining to sampling

                                             -6-

requirements, whole effluent toxicity testing requirements at two outfalls, and the TSS effluent

limits at three outfalls.

                                      IV. ANALYSIS

    Section 124.19 oftitle 40 of the Code of Federal Regulations governs Board review of

NPDES permits. 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)(4). Under

40 C.F.R. § 124.19, the Board has discretion to grant or deny review of a permit decision.

    Ordinarily, the Board will deny review of a permit decision 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(a)(4)(i)(A)-(B); accord, e.g., In re Prairie State Generating Co., 13 E.A.D. l, 10

(EAB 2006), aff'd sub nom. Sierra Club v. EPA, 499 F.3d 653 (7th Cir. 2007); see also

Revisions to Procedural Rules Applicable in Permit Appeals, 78 Fed. Reg. 5,281, 5,282 (Jan. 25,

2013 ). In considering whether to grant or deny review of a permit decision, 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." Consolidated

Permit Regulations, 45 Fed. Reg. 33,290, 33,412 (May 19, 1980); see also 78 Fed. Reg. at 5,282.

    In considering a petition filed under 40 C.F.R. § 124.19(a), the Board first evaluates

whether the petitioner has met threshold procedural requirements, including issue preservation.

See 40 C.F.R. § 124.19; In re Indeck-Elwood, LLC, 13 E.A.D. 126, 143 (EAB 2006). A

                                            -7-

petitioner must demonstrate that any issues and arguments it raises on appeal have been

preserved for Board review (i.e., 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.

40 C.F.R. §§ 124.13, .19(a)(4)(ii); see, e.g., In re City ofAttleboro, 14 E.A.D. 398, 441-42

(EAB 2009); In re Scituate Wastewater Treatment Plant, 12 E.A.D. 708, 724 (EAB 2006); In re

Arecibo & Aguadilla Reg 'l Wastewater Treatment Plants, 12 E.A.D. 97, 120-22 (EAB 2005);

In re City of Moscow, 10 E.A.D. 13 5, 141, 149-50 (EAB 2001 ). If a petitioner fails to meet a

threshold requirement, the Board typically denies or dismisses the petition for review. See, e.g.,

Arecibo, 12 E.A.D. at 122 (declining to review issues not raised during the public comment

period); In re Russell City Energy Ctr., LLC, PSD Appeal Nos. 10-12 & 10-13, at 4-7

(EAB June 9, 2010) (Order Dismissing Two Petitions for Review as Untimely).

A. Sampling Requirements

   The tables at Part I.A. I through I.A.4 of the Permit set forth monitoring requirements for

all four outfalls. These monitoring requirements specify the sample type, and footnote 3 provides

details about when the samples must be taken. Specifically, footnote 3 states:

   Grab samples shall be taken during the first 15 minutes of the initiation of the
   discharge where practicable, but in no case later than within the first hour of
   discharge. If collection of sample( s) during the first 15 minutes of discharge is
   impracticable, the Permittee shall submit a description of why the collection of the
   sample(s) during the first 15 minutes was impracticable.

Permit at 10 n.3. In its Petition, CertainTeed challenges when these grab samples must be taken.

Contrasting the current Permit with the permit issued in 2005, the Petition states:

   Footnote 3 for Parts I.A.I through 4 [of the 2005 permit] requires that storm water


                                            -8-


   samples be collected within the first 30 minutes of a storm event with a maximum
   collection time of three hours. In the Permit[,] the requirement has been changed
   to collecting a sample in the first 15 minutes with a maximum collection time of
   one hour.

Petition at 2; see also id at 5. 4 CertainTeed further argues that "[c]ollecting a sample within

15 minutes of discharge would be virtually impossible, especially given the winter weather in

[Massachusetts]." Id at 2, 5.

   The Region does not dispute that the 2005 permit allowed samples to be collected within

the first 30 minutes of discharge. Instead, it contends that CertainTeed failed to present its

argument in the proceedings for the current Permit, even though CertainTeed had the opportunity

to make such an argument. Response at 26. Specifically, the Region argues that footnote 3 "is

identical to the sample type footnote included in the Draft Permit, except that any requirement

pertaining to a composite sample was removed as a result of a request by [CertainTeed] made

during the public comment period to change composite samples to grab samples at Outfalls 002,

003 and 004." Id at 26-27. In the Draft Permit, footnote 3 addressed both grab samples and

composite samples. The Draft Permit provided:

   Grab samples shall be taken during the first 15 minutes of the initiation of the
   discharge where practicable, but in no case later than within the first hour of
   discharge. If collection of sample(s) during the first 15 minutes of discharge is
   impracticable, the Permittee shall submit a description of why the collection of the
   sample(s) during the first 15 minutes was impracticable. The composite samples
   for TSS shall consist of at least 8 grab samples collected on a time-weighted basis
   during a normal working day and during the time at which the discharge is
   entering the receiving water unless otherwise specified The timing ofgrab
   samples shall correspond with the timing of composite sampling for the other
   parameters.



   4
     Because the pages of CertainTeed's Petition are not numbered, the Board has numbered

the pages in order, beginning with the first page following the table of contents.

                                             -9-

See U.S. EPA Region 1 & MassDEP,Authorization to Discharge Under the National Pollutant

Discharge Elimination System, NPDES Permit No. MA0003531, at 8 n.3 (draft May 30, 2014)

(A.R. A.6) (emphasis added). CertainTeed's comments objected to taking composite samples

for TSS and total phosphorus, 5 see Letter from Patrick Widman, Plant Manager, CertainTeed

RPG, to Shauna Little, U.S. EPA Region 1, at 2 (July 9, 2014) (A.R. B.2) ("Comments"), and as

a result, the Region deleted the italicized portion of the quoted text above that referenced

composite samples. Notably, the grab sample requirement that CertainTeed now challenges

remains unaltered from the Draft Permit. Thus, CertainTeed had an opportunity during the

public comment period to object to the provisions concerning when a grab sample must be taken,

but failed to do so.

    5
        CertainTeed's comments provide in relevant part:

    Part I.A.2, Table 2 includes a requirement to collect a composite sample for Total
    Suspended Solids. Due to the limited discharge duration at this outfall we request
    that this sample requirement be changed to a grab sample and only when a
    discharge occurs.

    ****
    Part I.A.3, Table 3 requires composite samples for Total Suspended Solids and
    Phosphorous. We request that all sampling requiremnets for this outfall be
    changed to grab samples "when a discharge occurs." [Outfall 3] is a manually
    initiated discharge.

    ****
    Part I.A.4, Table 4 requires composite samples for Total Suspended solids and
    Phosphorous. We request that all sampling requirements for this outfall be
    changed to grab samples "when a discharge occurs." [Outfall 4] is a manually
    initiated discharge.

Comments at 2.

                                            -10-


   As we noted earlier, the Board typically declines to review arguments or issues that have

not been raised as required by 40 C.F.R. § 124.13. Important reasons underlie this procedural

requirement. "Adhering to the requirements in 40 C.F.R. § 124.13 ensures that the Region has

an opportunity to address potential problems with the draft permit before the permit becomes

final, thereby promoting EPA' s longstanding policy that most permit issues should be resolved at

the regional level, and providing predictability and finality to the permitting process." Arecibo,

12 E.A.D. at 116-17. Rarely, the Board will consider an issue not sp~cifically commented upon

where the specific issue raised in the petition is "very closely related to challenges raised during

the comment period" and the Region had the opportunity to respond to those comments. E.g., In

re New Eng. Plating Co., 9 E.A.D. 726, 732-33 (EAB 2001); see also Scituate, 12 E.A.D. at 723

n.7 (discussing New Eng. Plating); In re ExxonMobil Chem. Co., PSD Appeal No. 13-11, slip op.

at 20 n.9 (EAB May 14, 2014), 16 E.A.D. _(determining the Region was sufficiently on notice

of petitioner's objections and had an opportunity to respond).

   The narrow exception to the requirement to first raise objections during the public

comment period does not apply to this case. CertainTeed's comments do not address the time at

which a grab sample must be taken, nor are any other comments very closely related to this issue.

Nothing in the comments put the Region on notice of CertainTeed's concerns regarding the

requirement to obtain grab samples "during the first 15 minutes of the initiation of the discharge

where practicable," and the Region's first opportunity to address those concerns was in its

response to the Petition. Accordingly, CertainTeed has waived this issue, and the Board declines

review of the 15-minute time frame for grab sample requirements in footnote 3 of the Permit.

                                            -11-

B. Whole Effluent Toxicity Testing Requirements

   The Permit also includes whole effluent toxicity ("WET") testing requirements at

Outfalls 001 and 002 and provides sampling and reporting requirements in tables at Part I.A. I

and I.A.2, and in footnotes 12 through 16. Permit at 2-3 (Outfall 001), 5-6 (Outfall 002), 11-12

nn.12-16. CertainTeed seeks clarification as to a perceived "discrepancy with the sampling

requirements in [one of] the footnote[s] and [the] table[s]. Footnote 16 [of the Permit] lists

sampling requirements that include both total solids, dissolved solids and total chlorine. The

table[s] do[] not include these requirements." Petition at 5; see also id. at 2. Thus, according to

CertainTeed, the requirements in the tables conflict with the requirements described in

footnote 16 of the Permit.

   In responding to the Petition, the Region provided its interpretation of the tables and

footnote 16. 6 Both tables contain two sections that concern WET. One section, labeled "Whole

Effluent Toxicity," "requires effluent (i.e., 100 percent effluent) to be analyzed for certain

parameters, including total residual chlorine, total solids and total dissolved solids." Response

at 30; see Permit at 2-3 (Outfall 001), 5-6 (Outfall 002). Another section, labeled "Whole

Effluent Toxicity Test, Receiving Water Chemical Analysis," "requires the receiving water (i.e.,

zero percent effluent) to be analyzed for hardness, alkalinity, pH, specific conductance, ammonia,

total organic carbon, cadmium, copper, lead, nickel, zinc, aluminum, antimony, iron, manganese,

chromium, calcium, magnesium, [and] phosphorus." Response at 30; see Permit at 3

(Outfall 001), 6 (Outfall 002).

   6
     The Region provided this response in its Response brief, rather than earlier, because it

contends that CertainTeed did not raise this issue below. While there is merit to the Region's claim, the clarification it provides will nonetheless be helpful guidance for future compliance.

                                             -12-


   The Region further explains that "[t]otal residual chlorine, total solids and total dissolved

solids are not listed in the [t]able as being subject to receiving water toxicity testing requirements

because the Permit does not require them to be so tested." Response at 30 (quoting Permit at 12

n.16) (first emphasis added). Indeed, the Board confirms that the sections of the tables that are

labeled "Whole Effluent Toxicity Test, Receiving Water Chemical Analysis" do not list total

residual chlorine, total solids, and total dissolved solids as being subject to the prescribed

requirements. Permit at 2-3, 5-6. Moreover, footnote 16, which summarizes the WET test

requirements, provides:

   In conjunction with each WET test, the Permittee shall report the concentrations
   of hardness, alkalinity, pH, specific conductance, ammonia, total organic carbon,
   total recoverable cadmium, total recoverable copper, total recoverable lead, total
   recoverable nickel, total recoverable zinc, and total recoverable aluminum found
   in the 100% effluent and receiving water control (0% effluent) samples in
   [discharge monitoring reports] * * *, noted above as Whole Effluent Toxicity and
   Whole Effluent Toxicity Test, Receiving Water Chemical Analysis.* * * Total
   residue chlorine, total solids, and total dissolved solids must also be reported for
   100% effluent.

Id at 12 n.16 (emphasis added). Nothing in the footnote states that chlorine, total solids, and

total dissolved solids must be subject to receiving waters toxicity testing requirements.

    Here, the Region has reasonably construed the tables in Pa:t I.A. I and I.A.2 ·and

footnote 16 as being consistent with each other and not subjecting "[t]otal residual chlorine, total

solids and total dissolved solids * to receiving water toxicity testing." Response at 30. The

Board adopts the Region's harmonious interpretation of the provisions as "an authoritative

reading of the permit that is binding on the Agency." In re Austin Powder Co., 6 E.A.D. 713,

717 (EAB 1997); accord In re Charles River Pollution Control Dist., NPDES 14-01, slip. op.

at 23 (EAB Feb. 4, 2015), 16 E.A.D. ; In re Amoco Oil Co., 4 E.A.D. 954, 981(EAB1993);

                                             -13-

see also In re Great Lakes Chem. Corp., 5 E.A.D. 395, 397 (EAB 1994) (construing Agency's

, agreement with permit applicant's construction of permit terms as binding on Agency).

Accordingly, the Board rejects CertainTeed's claim that the tables pertaining to WET

requirements in Part I.A. I and I.A.2 and footnote 16 are unclear or contradictory.

C. Effluent Limits for Total Suspended Solids

    Finally, CertainTeed challenges the total suspended solids ("TSS") effluent limits for

Outfalls 002, 003, and 004, arguing that these limits should be identical to the concentration-

based TSS effluent limits the Region developed for Outfall 001. Petition at 1, 5-6. Outfalls 002,

003, and 004 are subject only to concentration-based effluent limits for TSS, whereas Outfall 001

is subject to both concentration-based and mass-based effluent limits for TSS. 7 For all outfalls,

the Permit retains the concentration-based TSS effluent limitations that were in the 2005 permit.

See Fact Sheet at 14, 15, 22-23, 25. Each outfall is subject to two concentratfon-based limits for

TSS: a maximum daily limit and a monthly average limit. For Outfall 001, the maximum daily

limit is 70 mg/L and the monthly average limit is 40 mg/L; for Outfall 002, the maximum daily

limit is 30 mg/L and the monthly average limit is 20 mg/L; and for Outfalls 003 and 004, the

maximum daily limits are 15 mg/Land the monthly average limits are 10 mg/L. Permit at 2, 5,

8-9. Thus, CertainTeed contends that the TSS effluent limits for Outfalls 002, 003, and 004

    7
     The mass-based TSS effluent limits are not in controversy in this appeal. The Region

concluded that the discharge at Outfall 001, unlike the discharge at Outfalls 002, 003, and 004, was composed of effluent from industrial categories subject to the effluent limitation guidelines. Therefore, the Region determined that the effluent limitation guidelines that formed the basis for the new mass-based TSS effluent limits at Outfall 001 did not apply to the remaining outfalls. Response at 14 (citing Fact Sheet at 11-12; RTC at 5-7, 8-9, 10); see also id. at 12-13 (describing development of effluent limits for Outfall 001 ).

                                             -14-

should be the same as those at Outfall 1: a maximum daily limit of 70 mg/L and a monthly

average limit of 40 mg/L.

    To arrive at the TSS concentration-based effluent limitations for Outfalls 002, 003, and

004, the Region explained that the limitations originated from a permit issued in 1997 and are

"technology-based limits based on BPJ." Fact Sheet at 22-23, 25; see also RTC at 7. The

Region further explained that it considered several factors when deciding to retain the TSS

effluent limits from the 1997 and 2005 permits for Outfalls 002, 003, and 004. First, the Region

considered "the impairment to the Neoponset River and the concentrations ofTSS measured in

effluent from the Facility." 8 Id. at 23; see also id. at 25. Then, the Region determined that the

technology-based limits were more restrictive than the water-quality-based limits. Id. at 23, 25.

The Region also considered the "low frequency of discharge from Outfall 002." Id. at 23.

Finally, the Region determined that for Outfalls 002, 003, and 004, the technology-based TSS

effluent limits did not violate the anti-backsliding prohibition on relaxed permit limits, and

discharge at those limits also would not violate the Massachusetts water quality standards. Id.

at 23, 25.

    During the public comment period, CertainTeed challenged the effluent limits for TSS at

Outfalls 002, 003, and 004. Comments at 1-3. With respect to Outfall 002, CertainTeed stated

that "there has not been a discharge from Outfall 002 since 2012. CertainTeed has performed

maintenance in the area that leads to Outfall 002 further reducing the likelihood of any

    8
     The Region considered the measured TSS concentrations from samples taken at

Outfalls 002, 003, and 004 from January 1, 2009, through December 31, 2013. Fact Sheet at 22-23, 25.

                                            -15-

discharges." Id. at 2. The heart of CertainTeed's objection to the limits at Outfall 002, which it

repeated verbatim in comments for Outfalls 003 and 004, was that:

    We find no design data or historical data that supports these lower limits. We
    believe the original limits to have been established in error. Further, the derived
    [best professional judgment and best achievable technology limits] for Outfall 001
    support a higher TSS limit. We request the TSS limit for Outfall 002 be changed
    to equal Outfall 001.

Id.; see also id. at 2 (Outfall 3), 4 (Outfall 4).

    The Region provided a nearly two-and-a-half page response to CertainTeed's comments

regarding the TSS effluent limitations for Outfall 002. 9 RTC at 5-7. In the response, the Region

refuted CertainTeed's allegation that the design data and historical record did not support the

effluent limitations and also explained that the limited discharge from the outfall and the

maintenance performed on the treatment system did not require less stringent limits. Id. at 5-6.

The Region also explained how it developed the TSS effluent limitations for Outfall 002, which

are technology-based, by using BPJ and why it did not relax the limits set in the prior permit. Id.

at 6-7. In particular, the Region explained that because of existing impairment in the receiving

water for conditions attributed to TSS, the effluent limitations existing in the prior permit would

satisfy anti-degradation requirements and, consequently, State certification requirements. Id.

at 6. The Region also noted that it found no exception to the anti-backsliding requirements that

would allow relaxation of the permit limits. Id.

    9
     The discharge from Outfall 002 consists of "treated contact process water (i.e., cleaning

and dust control water), non-contact cooling water, boiler condensate, boiler blowdown, and stormwater from the granule plant which drains into the Facility's stormwater system." Fact Sheet at 6.

                                                 -16-


   The Region explained that its responses to CertainTeed's comments regarding TSS limits

for Outfalls 003 and 004 are "substantially identical" to each other. 10 RTC at 10. The Region

reiterated that it first established the TSS effluent limitations for Outfalls 003 and 004 in the

1997 permit. Id. at 8. These limitations were technology-based and developed using best

professional judgment. Id. As in its response to comments concerning TSS effluent limitations

for Outfall 002, the Region expressed concern with relaxing the limitations at Outfalls 003 and

004 due to anti-degradation and anti-backsliding requirements: "[W]ere EPA to increase the

allowable TSS load to the [receiving water], the existing impairments related to TSS would be

expected to degrade. Further,* * * the limits have been maintained based on anti-backsliding

requirements." Id. at 9. The Region also noted that discharge from Outfalls 003 and 004 using

the existing technology has generally met the existing permit limits. Id. (stating that discharge

from Outfall 003 "has exceeded the daily maximum limit on only one occasion and has not

exceeded the monthly average limit"); id. at 10 (stating that discharge from Outfall 004 "has

exceeded the daily maximum limit only on two occasions and the monthly average limit on one

occasion ").

    On appeal, CertainTeed's argument regarding the TSS effluent limitations for

Outfalls 002, 003, and 004 does not add much, if anything, to what it stated in its comments. The

Petition on this point provides almost in its entirety:

   EPA determined that one or more of the limits in a prior permit for Outfall 001
   was a mistake. EPA chose to correct the alleged mistake but then did not
   recognize the other historic errors which resulted in differing TSS limits. The
   outfall with the highest and most consistent discharge, Outfall 001 [,] has the


    10
      The discharge from Outfalls 003 and 004 consist of treated stormwater discharge from

the tank farm and the still yard, respectively. Fact Sheet at 11.

                                             -17-


    highest TSS limit. Any historic limits for the other three Outfalls were in error
    and are not supported by the activity at the site. There was simply a mistake that
    was not corrected, but now EPA is attempting to correct one of the errors, but not
    all of them. To substantiate the error, it is clear that the derived Best Practicable
    Control Technology Currently Available (BPT) and Best Available Technology
    Economically Achievable (BAT) for Outfall 001 support the use of the TSS limit
    for Outfall 001 for the other Outfalls at the CertainTeed [F]acility * * * .

Petition at 3-4.

    When a petitioner challenges an issue the permit issuer addressed in its response to

comments, the petitioner must provide a record citation to the comment and response and also

must explain why the permit issuer's previous response to those comments was clearly erroneous

or otherwise warrants review. 40 C.F.R. § 124.19(a)(4)(ii); accord In re Penn. Gen. Energy Co.,

UIC Appeal Nos. 14-63 through 14-65, slip op. at 6-7 (EAB Aug. 21, 2014), 16 E.A.D. _;In

re Seneca Res. Corp., UIC Appeal Nos. 14-01through14-03, slip op. at. 7 & n.4 (EAB May 29,

2014), 16 E.A.D. _;see also In re Teck Cominco 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, at 7, 10-11 (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)

                                            -18-

(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).

    The U.S. Courts of Appeals for the First, Sixth, and Ninth Circuits have upheld this

Board requirement that a petitioner must substantively confront the permit issuer's response to

the petitioner's previous objections. Native Vil!. of Kivalina IRA Council v. EPA, 687 F.3d 1216,

1219-22 (9th Cir. 2012), aff'g In re Teck Alaska Inc., NPDES Appeal No. 10-04 at 7-11

(EAB Nov. 18, 2010) (Order Denying Review); 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 Fae. of Union Twp., NPDES Appeal

Nos. 00-26 & 00-28 (EAB Jan. 23, 2001) (Order Denying Petitions for Review); LeBlanc v.

EPA, 310 F. App'x 770, 775 (6th Cir. 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). Moreover, '"mere allegations of error' are insufficient to support review."

Westborough, 10 E.A.D. at 311 (citing In re City of Moscow, 10 E.A.D. 135, 172 (EAB 2001)

and New Eng. Plating, 9 E.A.D. at 730).

    In this case, CertainTeed's petition does not address the Region's extensive response to

. comments and consequently, CertainTeed has not demonstrated why those responses were clearly

erroneous or otherwise warrant review. CertainTeed provides no additional support or

                                           -19-

explanation for the contentions in its Petition. In particular, CertainTeed does not substantiate its

contentions that the "historic limits for the other three Outfalls were in error" and that the

"derived Best Practicable Control Technology Currently Available (BPT) and Best Available

Technology Economically Achievable (BAT) for Outfall 001 support the use of the TSS limit for

Outfall 001 for the other Outfalls at the CertainTeed [F]acility." Notably, these arguments

reiterate CertainTeed's comments, compare Petition at 3-4, with Comments at 2-3, to which the

Region thoroughly responded in its Response to Comments document. See RTC at 5-7

(discussing Outfall 002), 8-9 (discussing Outfall 003), 10 (discussing Outfall 004). Nor does

CertainTeed provide any response to the Region's statements in its Response to Comments

document that it cannot relax these limits because to do so would violate anti-backsliding and

anti-degradation requirements of the Clean Water Act.

    CertainTeed does challenge a portion of the administrative record: "EPA went to great

lengths to discuss the TSS limit for Outfall 001 [but] it did not substantiate the TSS limits for

Outfalls 002, 003, and 004." Petition at 5. This argument, however, follows a lengthy quotation

from the Fact Sheet11 describing the change to the TSS limitations for Outfall 001. Id at 4 ("The

Permit contains detailed information supporting the TSS limit for Outfall 001, but contains NO

information for the TSS limits for Outfalls 002, 003, and 004.") (misidentifying Fact Sheet as

Permit). The Board therefore does not construe this argument about Outfall 001 as a rebuttal to

the Region's response to comments for Outfalls 002, 003, and 004, which was issued after the

Fact Sheet and after consideration of public comments. See id at 4-5. Most significantly, the

    11
       CertainTeed's Petition includes over a page of quoted text that CertainTeed identifies

·as originating in the Permit; however, the Board has determined that the quoted text is from section 7.1.2 of the Fact Sheet, on pages 13 through 15, which discusses the TSS effluent limit for Outfall 001.

                                             -20-

Region's response to comments does in fact address the TSS effluent limitations for

Outfalls 002, 003, and 004. RTC at 5-7, 8, 10.

   The arguments in the Petition fail to confront the Region's responses to CertainTeed's

earlier objections and also are unsupported, conclusory, and lacking in the specificity required by

40 C.F.R. § 124.19(a)(4)(ii). Additionally, CertainTeed's failure to rebut the Region's response

to comments leaves the Board with a record that supports the Region's approach. Without more,

the Board is unable to determine what aspects of the Region's responses CertainTeed believes

were clearly erroneous or warrant review. CertainTeed has not met its burden of showing that

Board review of the effluent limits for TSS at Outfalls 002, 003, and 004 is warranted.

                            V. CONCLUSION AND ORDER

   For the reasons stated above, the Board denies CertainTeed's petition for review of

Permit No. MA0003531.

   So ordered.




                                               ENVIRONMENTAL APPEALS BOARD 12




                                                             Kathie A. Stein
                                                       Environmental Appeals Judge



   12
     The two-member panel deciding this matter consists of Environmental Appeals Judges

Leslye M. Fraser and Kathie A. Stein. 40 C.F.R. § 1.25(e)(1).

                                           -21-


                            CERTIFICATE OF SERVICE

    I hereby certify that copies of the foregoing Order Dismissing Petition for Review in the

matter of In re CertainTeed Corporation, NPDES Appeal No. 15-01, were sent to the following persons in the manner indicated:

By U.S. First Class Certified Mail, Return Receipt Requested: Lauren P. Alterman Saint-Gobain Corporation 750 E. Swedesford Road Valley Forge, PA 19482

By EPA Pouch Mail:
Samir Bukhari
U.S. Environmental Protection Agency
Office of Regional Counsel, Region 1
5 Post Office Square - Suite 100
Mail Code ORA 18-1
Boston, MA 02109-3912

Date: MAY 7, 2015

[signature]
Annette Duncan
Secretary