In re Scituate Wastewater Treatment Plant
On November 22, 2004, Region I ("Region") of the United States Environmental Protection Agency ("EPA") issued National Pollutant Discharge Elimination System ("NPDES") Permit No. MA0102695 to the Town of Scituate, Massachusetts ("Scituate" or "Town"), pursuant to section 402 of the Clean Water Act ("CWA"), 33 U.S.C. § 1342. The permit authorizes discharges of wastewater from the Scituate Wastewater Treatment Plant ("WWTP"), a 1.6 million gallon-per day advanced
treatment facility that the Town has owned and operated since 1965 and periodically upgraded over the years. The WWTP discharges treated wastewater to a 2,000-foot-long tidal creek that runs through a salt marsh and empties into the Herring River, which leads to the North River and ultimately to the Atlantic Ocean. On December 27,2004, Scituate filed a petition for review of the NPDES permit pursuant to EPA's permitting regulations at 40 C.F.R. part 124, requesting on a number of grounds that the permit be remanded to the Region for further consideration.
Held: The petition for review of NPDES Permit No. MA0102695 is denied. The Environmental Appeals Board ("Board") finds that Scituate made no showing of clear error, abuse of discretion, or important policy matter warranting Board review of the permit. The Board's primary holdings are as follows:
(1) Adherence to Permit Issuance Rules. First, Scituate contends that the Region failed to observe with adequate precision the procedural requirements of 40 C.F.R. 5 124.15 pertaining to permit issuance. The Board finds otherwise, holding that the Regional Administrator's authorized representative properly issued the permit, caused it to be served on interested parties by mail, and appropriately notified those parties of the procedures for appealing a permit decision under 40 C.F.R. 5 124.19.
(2) Elimination of Mixing Zone and Dilution Analysis for Toxic Pollutants. Second, Scituate argues that the Region's decision to eliminate use of the tidal creek as a mixing zone for toxic pollutants such as copper, nickel, and zinc, and thus to deny to Scituate the benefit of the dilution such a zone affords, is clearly erroneous and an important public policy matter necessitating Board review. The Town advances a series of challenges to the Region's analysis, consisting primarily of objections to the Region's decisions to impose new, more stringent effluent limits on the WWTP's discharges of copper, nickel, and zinc, which resulted from the elimination of the mixing zone. The Board holds the following with respect to these challenges:
(a) Waters of the United States. Scituate presents a belated argument that the tidal creek is not a water of the United States protected under the CWA. The Board finds that this argument was neither preserved for review nor properly presented in this forum and thus denies review on this basis. The Board notes that even if the argument were properly preserved and presented, the Town's failure to introduce evidence of the purportedly artificial construction of the creek, and to distinguish multiple federal cases holding that manrnade waters are legitimately protected under the CWA, would have precluded a grant of review on this basis.
(b) Need for Effluent Limits for Cooper, Nickel, and Zinc. Scituate argues that EPA has not provided any documentation that the WWTP is discharging toxic materials in toxic concentrations or that water quality has been adversely affected. The Board finds that, again, this argument was not adequately raised below and thus is not preserved for review here. The Board notes that even if the argument were properly preserved, the Town's failure to come forward with competing effluent data or other technical information of any kind to rebut the Region's data and conclusions in this regard would have precluded a gmt of review on this basis.
(c) Applicable Water Quality Standards. Scituate claims that the Region based the new metals effluent limits on "Gold Book" water quality standards, but the Board again finds that the Town did not mention this issue during the comment period and that the issue is thus not preserved for review. The Board notes further that Scituate's claim is factually in error in any event, as the Region based the effluent limits on other water quality criteria, not Gold Book standards.
(d) Reliance on Prior Regulatory Approvals. Scituate contends that it had made substantial WWTP upgrades in reliance on EPA and other agency approvals of facility upgrade plans based on the mixing zone. The Board finds that Scituate's arguments in this regard merely restate the Town's comments on this subject rather than attempt to rebut the Region's responses to those comments below. Accordingly, the Board finds no basis for a grant of review on this ground.
(e) Compliance Through Issuance of Consent Order. Scituate argues that the new effluent limits for copper, nickel, and zinc are unachievable and that the Region recognized this fact by offering to enter into an administrative consent order to assist the Town in complying with the limits. The Board finds otherwise, holding that in issuing the permit the Region did what the facts and law required it to do under these circumstances. Cost and technological considerations are not appropriate factors for consideration in establishing water quality-based effluent limits. The Board holds that the Region's offer to negotiate a consent order merely signaled the Region's awareness of the challenges the Town faces and the Region's willingness to work to find a path for compliance with the CWA that reflects the Town's reality.
(3) Effluent Limits for Biochemical Oxygen Demand,Total Suspended Solids, and Total Nitrogen. Third, Scituate claims that the Region failed to adequately respond to its comments suggesting relaxation of the effluent limits for carbonaceous biochemical oxygen demand and total suspended solids. The Board finds that these limits are attributable to the state water quality certification for this permit and, thus, challenges to the limits must be adjudicated in state court. Scituate also contends that a concentration limit for total nitrogen discharges is unnecessary, but the Board rejects that claim because it was not raised during the comment period and thus is not preserved for review before the Board.