City of Marlborough, Massachusetts (Westerly Wastewater Treatment Facility) (Board decision, December 17, 2021)

Plain-English summary

OARS, Inc. petitioned for review of NPDES Permit No. MA0100480 issued to the City of Marlborough, Massachusetts, for the Westerly Wastewater Treatment Facility. OARS moved to withdraw its petition after EPA Region 1 withdrew the permit's summer, April 1 through October 31, mass-based Total Phosphorus limit. The Region represented that it intended to prepare a new draft permit addressing the withdrawn provision and that the corresponding portions of the prior permit would remain in effect until a new permit was issued. The EAB granted the motion and dismissed the petition under 40 C.F.R. § 124.19(k). The order did not decide the merits of the permit challenge.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19(k)
• Outcome: The petition for review was dismissed after EPA Region 1 withdrew the challenged permit provision.
• Key point: Withdrawal of a contested NPDES permit provision can support dismissal of a related EAB petition while the agency prepares a new draft permit.

Full text (EPA EAB public release)

                                                                                         F I L E D
                                                                                             Dec 17, 2021
                                                                                        Clerk, Environmental Appeals Board
                                                                                        INITIALS ________________________
                    ENVIRONMENTAL APPEALS BOARD
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON, D.C.


                                               )

In re: )
) NPDES Appeal No. 21-04
City of Marlborough, Massachusetts
)
(Westerly Wastewater Treatment Facility)
)
)
NPDES Permit No. MA0100480
)

 ORDER GRANTING PETITIONER’S MOTION TO DISMISS PETITION FOR
                         REVIEW

      On December 15, 2021, Petitioner, OARS, Inc., filed a motion to withdraw its petition to

review National Pollutant Discharge Elimination System (NPDES) Permit No. MA0100480.

Petitioner represents that it is moving for dismissal of its petition in light of a recent filing by the

permit issuer, U.S. EPA Region 1, in which the Region indicates that it is withdrawing the

“summer” (April 1-October 31) mass-based Total Phosphorus limit contained in the Final Permit

at Part I.A.1. Petitioner’s Motion to Dismiss Petition for Review at 1 (“Pet.’s Mot.”) (filed Dec.

15, 2021); Notice of Permit Provision Withdrawal & Notice of Uncontested and Severable

Permit Conditions at 2 (filed Dec. 15, 2021) (“Withdrawal”). Petitioner also bases its motion on

the Region’s representations that: 1) it intends to prepare a new draft permit addressing the

portion withdrawn; 2) until such time as a new permit addressing the withdrawn portion is

issued, the corresponding portions of the prior permit shall remain in effect; 3) in issuing any

such new permit, the Region proposes to regulate Total Phosphorus in concentration-based form;

and 4) the Region intends to maintain Total Phosphorus limits in concentration-based form for

all permittees on the Assabet River subject to the Assabet River Total Maximum Daily Load

developed by the Massachusetts Department of Environmental Protection. Pet.’s Mot. at 1 (filed
Dec. 15, 2021); see also Withdrawal at 2. Petitioner represents that the Region does not oppose

the motion. Pet.’s Mot. at 2.

   Based on Petitioner’s representations, the Board GRANTS the motion and DISMISSES

the petition for review. See 40 C.F.R. § 124.19(k).

   So ordered. 1


                                                  ENVIRONMENTAL APPEALS BOARD




   December 17, 2021

Dated: ____ By: ______
Aaron P. Avila
Environmental Appeals Judge

   1
    The three-member panel deciding this matter is composed of Environmental Appeals

Judges Aaron P. Avila, Mary Kay Lynch, and Kathie A. Stein.

                                                  2

CERTIFICATE OF SERVICE

  I certify that copies of the foregoing Order Granting Petitioner’s Motion to Dismiss

Petition for Review, in the matter of City of Marlborough, MA, NPDES Appeal No. 21-04, were
sent to the following persons in the manner indicated:

By Electronic Mail:
Sean M. Divoll For EPA:
Commissioner of Public Works Michael Knapp
City of Marlborough Senior Assistant Regional Counsel
135 Neil St. Marlborough, MA 01752 US Environmental Protection Agency
[email protected] Office of Regional Counsel, Region 1
[email protected]
Stephen M. Leonard
Attorney for OARS, Inc.
Cronin & Leonard
56 Nonesuch Road
Weston, MA 02493
[email protected]

Attorneys for OARS, Inc.
23 Bradford Street
Concord, MA 01742
[email protected]

Lealdon Langley, MassDEP
Division of Watershed Management
Department of Environmental Protection
Commonwealth of Massachusetts
One Winter Street Boston, MA 02108-4746
[email protected]

Dated: ____
Dec 17, 2021 ______

                                                         Annette Duncan
                                                      Administrative Specialist