In re District of Columbia Water And Sewer Authority
Four petitions seek Board review of a final National Pollutant Discharge Elimination System (“NPDES”) Permit (generally, the “Blue Plains Permit”) Region 3 (the “Region”) of the United States Environmental Protection Agency (“EPA”) issued to the District of Columbia Water and Sewer Authority (“WASA”) for the operation of its Blue Plains Wastewater Treatment Plant on April 5, 2007 (the “Final Permit”). WASA’s first petition, which originally challenged a Blue Plains Permit issued in 2004, argued that the Region should have included in the Blue Plains Permit a compliance schedule for the implementation of selected controls in WASA’s Combined Sewer Overflow (“CSO”) Long Term Control Plan (“LTCP”). The Board previously dismissed the other issues raised in that petition and stayed consideration of the remaining issue while the Blue Plains Permit underwent further modification. The Board now applies WASA’s remaining argument to the Final Permit. In the second petition, the Chesapeake Bay Foundation (“CBF”) filed a petition arguing that the Region should have included in the Final Permit a compliance schedule for achieving the total nitrogen effluent limit. Third, WASA filed an additional petition challenging the total nitrogen effluent limit in the Final Permit and, mirroring CBF, arguing that the Region should have included in the Final Permit a schedule for compliance with that limit. Finally, Friends of the Earth and the Sierra Club (together, “FOE/SC”) filed a petition contending that the Region improperly modified, without adequate notice and comment, a permit provision relating to compliance with the District of Columbia’s (the “District’s”) water quality standards, and that this modification violates the antibacksliding provisions of the Clean Water Act (“CWA”) and does not properly ensure compliance with the District’s water quality standards. The Board has administratively consolidated these petitions for purposes of review.
These petitions for review involve three basic sets of issues: (1) whether, under the CWA and District regulations, compliance schedules for implementation of the LTCP and the nitrogen effluent limit must be included in the Final Permit; (2) whether modification of the Blue Plains Permit to replace a total nitrogen goal with the total nitrogen effluent limit was appropriate; and (3) whether the Region provided adequate notice and opportunity to comment on the language in the Final Permit that sets the water quality-based requirements for CSOs, and whether this language is consistent with the CWA and EPA regulations.
Held: The Board remands the Final Permit in part and denies review in part.
(1) By failing to include in the Final Permit compliance schedules for implementation of selected controls in WASA’s LTCP and achievement of the nitrogen effluent limit, the Region violated District of Columbia Municipal Regulations § 1105.9, which on its face provides that when a new water quality standard-based effluent limitation is required in a permit, “[a] compliance schedule must be included in the permit.” DCMR § 1105.9 (emphasis added).While EPA’s CSO Policy states a preference for including such compliance schedules in judicial orders for major permittees, it does not require that such schedules be included only in judicial orders and does not give the Region discretion to ignore the plain meaning of the District’s water quality standards regulation. The Board rejects the Region’s argument that it has discretion in determining whether to include compliance schedules in the Final Permit because the District’s regulation must be read as being consistent with 40 C.F.R. § 122.47, which makes inclusion of such schedules discretionary. Congress granted states the authority to adopt their own water quality standards and effluent limitations that may be more stringent than federal law, 33 U.S.C. § 1370, and the District was not required to mirror the language of § 122.47 in adopting DCMR § 1105.9.
On remand, the Region must modify the Final Permit so that it includes compliance schedules for implementation of selected controls in WASA’s LTCP and achievement of the nitrogen effluent limit consistent with the District regulations and the CWA .
(2) With the exception of the compliance schedule for the nitrogen limit covered in holding (1) above, WASA’s petition challenging the Region’s decision to include the nitrogen effluent limit in the Final Permit is denied in all respects. WASA failed to demonstrate why the Region’s response to comments was clearly erroneous, and it failed to convince the Board that the Region’s Final Permit determination with respect to the nitrogen effluent limit was clearly erroneous or otherwise warranted review.
(3) In drafting the Final Permit, the Region removed from the draft permit, without providing notice or opportunity to comment, a general provision requiring that WASA comply with water quality standards during the twenty-year interim period before full implementation of its LTCP. In removing the general prohibition that applied during the interim period, the Region appears to have changed significantly its underlying interpretation of the CWA and CSO Policy. This change was not a “logical outgrowth” of the previous proposal, and the Region clearly erred by removing the provision without reopening the comment period. On remand, the Region must modify the Final Permit to include a general provision ensuring compliance with water quality standards during the interim period or reopen the comment period and provide opportunity to comment on this issue and then provide an adequate response to any such comments received.