TABLE OF CONTENTS Title PDF Page No.mwraadvisoryboard.com/wp-content/uploads/2014/09/2014-09-12-Exec... · Pursuant to G.L. c. 30A, § 11, 314 CMR 2.08 and 310 CMR 1.00 the Upper

Joseph E. Favaloro, Executive Director 100 First Avenue • Building 39 • 4th Floor • Boston, MA 02129 • Telephone: (617) 788-2050 • Fax: (617) 788-2059

Website: www.mwraadvisoryboard.com • Email: [email protected]

Arlington • Ashland • Bedford • Belmont • Boston • Braintree • Brookline Dedham • Everett • Framingham • Hingham • Holbrook • Leominster Medford • Melrose • Milton • Nahant • Natick • Needham • Newton Revere • Saugus • Somerville • South Hadley • Southborough • Stoneham Watertown • Wellesley • Weston • Westwood • Weymouth • Wilbraham

Burlington • Cambridge • Canton • Chelsea • Chicopee • Clinton

Lexington • Lynn • Lynnfield • Malden • Marblehead • Marlborough

Northborough • Norwood • Peabody • Quincy • Randolph • Reading

S toughton • Swamps co t t • Wake fi e ld • Wa lpo le • Wa ltha m

Wi l mi ng t o n • W inc hes te r • W int h rop • Wob ur n • Wo rc e s t e r

TABLE OF CONTENTS

Title PDF Page No.

A. Executive Committee Cover Letter 2

B. Executive Committee Agenda 3

C. Proposed Advisory Board Agenda – September 18, 2014 5

D. Proposed Slate for FY15 Executive Committee 6

E. Charles River NPDES Appeal Discussion 7

F. Draft Executive Committee Minutes – June 2014 65









TO: Executive Committee Members John Carroll Andrew Pappastergion Joseph Foti FROM: Katherine Haynes Dunphy DATE: September 5, 2014

RE: Executive Committee Meeting – Friday, September 12, 2014 The next meeting of the Executive Committee will be held on Friday, September 12, 2014 at 8:30 a.m. at the Advisory Board’s office at 100 First Avenue, Building 39, 4th Floor, Charlestown, MA 02129. Free parking is available at the Flagship Wharf Garage, 197 8th Street, Charlestown, MA 02129. (Please note the time you get to the garage and let Mary Ann know the time when you get to the office.) As is our September norm, Joe will be teeing up priorities for this fiscal year. We also have two Action Items:

• Nomination and Election of the FY15 Executive Committee • Formal Discussion and Vote on our Financial Participation in the Charles River Pollution Control District

NPDES Appeal (as discussed on the Advisory Board’s field trip)

If you have not had an opportunity to participate in an i-Pad workshop, staff will be holding the workshops on Wednesday, September 10th from 1 to 3 p.m. and immediately following the Executive Committee meeting on September 12th. If you are interested in remaining on the FY15 Executive Committee, and have yet to respond, please let Mary Ann know. As you can see, there is a lot of information to share and discuss. Staff looks forward to seeing you on the 12th.









EXECUTIVE COMMITTEE MEETING FRIDAY, SEPTEMBER 12, 2014

ADVISORY BOARD OFFICE 8:30 A.M.

AGENDA

I. Approval of the June 13, 2014 Minutes of the Executive Committee

II. Action Item: Nomination of the FY15 Executive Committee

III. Action Item: Discussion on Advisory Board Financial Participation in the Charles River Pollution Control District (CRPCD) NPDES Appeal

IV. Advisory Board FY15 Updates and Priorities

V. Retail Rates Workshop

VI. Approval of the Advisory Board Agenda for September 18, 2014









***NOTICE****

(PLEASE POST)

Advisory Board Meeting

The next regular meeting of the MWRA Advisory Board will be held on Thursday, September 18, 2014 at 11:30 a.m. at the Boston Water and Sewer Commission, 980 Harrison Avenue, Roxbury, MA. The proposed agenda for the meeting, to be made final at an open meeting of the Executive Committee on September 12, 2014 (8:30 a.m.) at the Advisory Board office, is on the back of this notice. Please contact Joe Favaloro at the Advisory Board office no later than September 12, 2014 with any additional items for the final agenda.









MWRA ADVISORY BOARD MEETING

SEPTEMBER 18, 2014 BOSTON WATER AND SEWER COMMISSION

980 HARRISON AVENUE, ROXBURY, MA – 11:30 A.M. PROPOSED AGENDA1

A. APPROVAL OF THE MAY 15 AND JUNE 19, 2014 MINUTES OF THE ADVISORY BOARD

B. WELCOME C. REPORT OF THE EXECUTIVE DIRECTOR D. PRESENTATION(S):

DEP INITIATIVES – David Cash, Commissioner of the Department of Environmental

Protection

MWRA FY15 PRIORITIES AND CHALLENGES – Fred Laskey, MWRA Executive Director ADVISORY BOARD FY15 PRIORITIES AND CHALLENGES – Joseph Favaloro, MWRA

Advisory Board Executive Director

E. COMMITTEE REPORTS

Executive Committee – Katherine Haynes Dunphy

ACTION ITEM: NOMINATION AND ELECTION OF THE FY15 EXECUTIVE COMMITTEE

WSCAC/WAC FY15 PRIORITIES AND CHALLENGES – Lexi Dewey, Executive Director, Water Supply Citizens Advisory Committee and Andreae Downs, Executive Director, Wastewater Advisory Committee

Operations Committee – Lou Taverna

UPDATE Finance Committee – Bernard Cooper

UPDATE F. ADJOURNMENT

1 This agenda will be made final at an open meeting of the Executive Committee on September 12, 2014 at 8:30 a.m. in the Advisory Board office. You may wish to attend that meeting or to contact the Advisory Board’s Executive Director prior to that date with any additional items for the final agenda.









SLATE FOR CONSIDERATION FOR THE MWRA ADVISORY BOARD

FY15 EXECUTIVE COMMITTEE Chair: Katherine Haynes Dunphy, Milton Vice Chair of Finance: Bernie Cooper, Norwood Vice Chair of Operations: Lou Taverna, Newton Secretary: William Hadley, Lexington Treasurer: John P. Sullivan, Boston At-Large: Carol Antonelli, Wakefield Michael Coffey, Quincy

John DeAmicis, Stoneham Andrew DeSantis, Chelsea

Robert King, Somerville Timothy MacDonald, Cambridge

*Brendan O’Regan, Saugus Nicholas Rystrom, Revere

John Sanchez, Burlington Walter Woods, Wellesley

(2) Vacant

*New for FY15

Case Administrator

Bowditch &Q~~~y

August 27, 2014

Massachusetts Department of Environmental Protection Office of Appeals and Dispute Resolution One Winter Street Boston, MA 02108

Re: In the Matter of Charles River Pollution Control District NPDES Permit No. MA0102598

Dear Sir or Madam:

Enclosed for filing please find the following:

1. Notice of Claim for Adjudicatory Hearing; and 2. copy of Adjudicatory Hearing Fee Transmittal Form.

Thank you.

obert D. Cox, Jr.

Robert D. Cox, Jr. Direct telephone: (508) 926-3409 Direct facsimile: (508) 929-3012 Email: [email protected]

Attorney for Upper Blackstone Water Pollution Abatement District and Towns

RDCjr/igm · Enclosures

of Bellingham, Franklin, Millis and Medway

Cc: Upper Blackstone Water Pollution Abatement District, Karla H. Sangrey, P.E., Engineer Director

Town ofBellingham, Donald DiMartino, Director, Department of Public Works Town of Franklin, Robert A. Cantoreggi, Director Town of Millis, James F. McKay, Assistant Director Town of Medway, Thomas Holder, Director, Department of Public Works

www.bowditch.com Boston I Framingham I WVrcester

311 Main Street, P.O. Box 15156, Worcester, MA 01615-0156 P: 508.791.3511 \Ckni Fiks!F"JV/2.!(19~6/!1!3 i iDEP!!i';l097967.DClC'X: ll

COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

DEPARTMENT OF ENVIRONMENTAL PROTECTION

In the matter of:

Charles River Pollution Control District

) ) ) ) ) ) ) )

NPDES Permit No. MA0102598

NOTICE OF CLAIM FOR ADJUDICATORY HEARING

Pursuant to G.L. c. 30A, § 11, 314 CMR 2.08 and 310 CMR 1.00 the Upper Blackstone

Water Pollution Abatement District and the Towns of Bellingham, Franklin, Millis and Medway,

Massachusetts ("Petitioners") submits this Notice of Claim for Adjudicatory Hearing ("Notice")

requesting the Department of Environmental Protection, vacate, modify or remand certain terms

and provisions of a National Pollutant Discharge Elimination System ("NPDES") Permit No.

MA01 02598, issued to the Charles River Pollution Control District, ("District"), jointly by the

United States Environmental Protection Agency, Region 1 ("EPA") and the Massachusetts

Department of Environmental Protection ("MassDEP") as an identical state Surface Water

Discharge Permit pursuant to the Massachusetts Clean Waters Act, G.L. c. 21, §§ 26-53 and

314 CMR 3.00, dated July 23, 2014 (the "Permit"), in whole or in part, on the grounds that the

Permit was issued without basis in fact and/or law and was arbitrary or capricious, an abuse of

discretion, or otherwise not in accordance with the law. In support of this Notice, the Petitioners

state the following:

{Client Files/ENV/21 0986/0 l31/DEP/03097541.DOCX; 1}

1. Following the District's timely application for reissuance of its NPDES Permit,

EPA and MassDEP jointly issued draft permits pursuant to Section 402(a) of the Clean Water

Act ("CWA"), 33 U.S.C. § 1342, and G.L. c. 21, § 43, respectively.

2. The Petitioners timely submitted written comments on the draft permits to EPA

and MassDEP.

3. On July 23, 2013, EPA and MassDEP co-issued the Permit along with the original

Fact Sheet and responses to comments by Petitioners and others. The Permit, according to its

terms, will become effective in 60 days after signature, except for those provisions stayed by this

appeal pursuant to 314 CMR 2.08(3)( c), until the Commissioner's final decision on the Permit.

4. Petitioners are persons aggrieved by the issuance of the Permit and therefore have

a standing under G.L. c. 30A and 310 CMR 1.00 to bring this request for adjudicatory hearing.

The issues raised by Petitioners in this Notice were raised during the public comment period

and/or are in response to changes made by EPA and MassDEP from the draft permit to the final

permit.

5. Petitioners contend that certain Permit conditions were issued without basis in

fact and/or law and are arbitrary and capricious, an abuse of discretion, or otherwise not in

accordance with law. Specifically, Petitioners challenge the folle>wing Permit conditions:

(1) The inclusion of the Towns of Franklin, Medway, Millis, and Bellingham as co-permittees for specific activities required at Sections I.BUnauthorized Discharges- and I.C- Operation and Maintenance of the Sewer System, which include conditions regarding operation and maintenance of the collection systems (at page 1 of 15 of the Permit).

(2) The applicability of Part I.B.- Unauthorized Discharges- to co-permittees (at page 7 of 15 of the Permit).

2 {Client Files/ENV/210986/0 131/DEP/0309754l.DOCX;l}

(3) The applicability of Part I. C.- Operation and Maintenance of the Sewer System- to "each co-permittee ... for the collection system which it owns" (at pages 7-9 of 15 of the Permit).

6. With this Notice and Petitioners' appeal of the MassDEP's Surface Water Quality

Discharge permit pursuant to 40 CMR 124.19, Petitioners are concurrently submitting a Petition

for Review of the Permit to the Environmental Appeals Board ("EAB"), requesting review of the

identical terms and provisions of the NPDES Permit as made by way of this Notice.

7. The specific terms and provisions of the Permit Petitioners appeal are set forth in

Attachment A which is hereby incorporated by reference as part of this Notice.

8. Because Petitioners seek review before the EAB of Permit conditions identical to

those issued by MassDEP in the NPDES/Surface Water Discharge Permit issued by MassDEP,

Petitioner appends its Petition for Review to the EAB at Attachment B, and hereby incorporates

Attachment Bas part of this Notice. The specific grounds and basis for Petitioners' appeal of the

Permit are set forth in Attachment B.

9. A copy of the Permit is available at EPA's website and here

http:/ /www.epa.gov/region 1/npdes/permits/20 14/finalmaO 1 02598permit.pdf.

For the reasons set forth above, and in the Petitioners' Petition for Review submitted to

the EAB (Attachment B) as well as those which the Petitioners reserve the right to raise as these

proceedings unfold, Petitioners request that the Permit be vacated, modified or remanded in

whole or in part.

3 {Client Files!ENV /210986/0 131/DEP/0309754l.DOCX; 1}

Dated: August 27, 2014

{Client Files/ENV /210986/0 131/DEP/0309754l.DOCX; 1}

UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT AND TOWNS OF BELLINGHAM, FRANKLIN, MILLIS AND MEDWAY

By its~

Robert D. Cox, Jr., Esquire BBO #546486 Norman E. Bartlett, II, Esquire BBO #566761 Jennifer Garner BBO #688754 BOWDITCH & DEWEY, LLP 311 Main Street P.O. Box 15156 Worcester, MA 01615-0156 Tel: (508) 926-3409 Fax: (508) 929-3012 [email protected] [email protected]

4

ATTACHMENT A

ATTACHMENT A TERMS OR PROVISIONS FROM NPDES

PERMIT NO. MA 0102598 SUBJECT TO PETITIONER'S APPEAL

Part Page of Permit Term or Provision Appealed Subject Matter

1. Page 1 of 15 Listing the Towns of Franklin, Co-Permittee Medway, Millis and Bellingham as Co-Permittees

2. Part LB. Page 7 of15 Unauthorized Discharges Co-Permittee

3. Part I. C. Pages 7-9 of 15 Operation and Maintenance of the Co-Permitt~e Sewer System

ATTACHMENT B

BEFORE THE ENVffiONMENTAL APPEALS BOARD UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.

In re:

CHARLES RIVER POLLUTION CONTROL DISTRICT

' NPDES Permit No. MA 0102598

) ) ) ) ) ) ) __________________________ )

NPDESAPPEALNO. 14-

PETITION FOR REVIEW BY UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT AND THE TOWNS OF BELLINGHAM, FRANKLIN,

MILLIS AND MEDWAY

Date: August 27, 2014

Is/ Robert D. Cox, Jr. Norman E. Bartlett, II Jennifer Gamer BOWDITCH & DEWEY, LLP 311 Main Street P.O. Box 15156 Worcester, MA 01615-0156 Telephone: 508-926-3409 Facsimile: 508-929-3012 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected]

Counsel for the Petitioners

Important: When filling out forms on the computer, use only the tab key to move your cursor - do not use the return key.

~ ~

Massachusetts Department of Environmental Protection

Adjudicatory Hearing Fee Transmittal Form IMPORTANT! This form is intended for fee transmittal only. The contents of a request for an adjudicatory appeal (Notice of Claim) are established at 310 CMR 1.01 (6) and the substantive statutes and regulations governing the Department's action.

A. Person/Party Making Request

1. Name and address of person or party making request: Upper Blackstone Water Pollution Abatement District and the Towns of Bellingham, Franklin, Millis & ~--~----~------------~~----------------------------------------~~wey I Name - If appropriate, name group representative

c/o Robert D. Cox, Jr., Attorney Street Address 311 Main Street, Worcester MA City State

2. . Project Information:

Charles River Pollution Control District, 66 Village Street Street Address Medway

City

NPDES MA0102598 DEP File or ID Number

[email protected] Email Address

B. Applicant (if applicable)

1. Name and address of applicant:

N/A Name - If appropriate, name group representative

Street Address

City

Email Address

C. Instructions

MA State $ 100.00 Amount of filing fee attached

State

01608

Zip Code

02053

Zip Code

Zip Code

1. Send this form and check or money order of $100.00 payable to the Commonwealth of Massachusetts to the MassDEP Lockbox at:

Department of Environmental Protection P.O. Box 4062 Boston, MA 02211

2. Send a copy of this form and a copy of the check or money order with the Request for Adjudicatory Appeal (Notice of Claim) to:

Case Administrator Office of Appeals and Dispute Resolution One Winter Street Boston, MA 021 08

adjherfm.doc • rev. 5/13 Adjudicatory Hearing Fee Transmittal Form • Page 1 of 1

08/27/2014 BOWDITCH & DEWEY, LLP VENDOR #: 0247 Commonwealth of Massachusetts CHE;CK NO.: 251307

DATE INVOICE NUMBER

08-27-2014 056978

BOWDITCH & DEWEY, LLP 311 MAIN STREET P.O. BOXi5156 WORCESTER; MA 01615·0156

NPDES MA0102598

Filing Fee

PAY ONE HUNDRED AND 00/100 Dollars

TO Commonwealth of Massachusetts THE

ORDER OF

DESCRIPTION

Bank of America 5~13/110

VOID IF NOT CASHED WITHIN 120 DAYS

AMOUNT

100.00

TOTAL: 100.00

CHECK NO;: 251'307

CHECK DATE

08/27/2014

CHECK AMOUNT

BY ____ ~~~~~~~~=-~~~------TWO SIGNATURES REQUIRED FOR AMOUNTS

EXCEEDING $25,000.00

BEFORE THE ENVIRONMENTAL APPEALS BOARDUNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.

In re:

CHARLES RIVER POLLUTIONCONTROL DISTRICT

NPDES Permit No. MA 0102598

))))))))

NPDES APPEAL NO. 14-

PETITION FOR REVIEW BY UPPER BLACKSTONE WATER POLLUTIONABATEMENT DISTRICT AND THE TOWNS OF BELLINGHAM, FRANKLIN,

MILLIS AND MEDWAY

/s/

Robert D. Cox, Jr.Norman E. Bartlett, IIJennifer GarnerBOWDITCH & DEWEY, LLP311 Main StreetP.O. Box 15156Worcester, MA 01615-0156Telephone: 508-926-3409Facsimile: 508-929-3012E-mail: [email protected]: [email protected]: [email protected]

Counsel for the PetitionersDate: August 27, 2014

i

TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1THRESHOLD PROCEDURAL REQUIREMENTS ..................................................................... 2FACTUAL AND STATUTORY BACKGROUND ...................................................................... 2PARALLEL PROCEEDINGS........................................................................................................ 5TERMS AND CONDITIONS APPEALED................................................................................... 6ARGUMENT.................................................................................................................................. 6

A. The Region Lacks Legal Authority To Make The Towns’ CollectionSystems Subject To NPDES Permitting. .................................................................61. Region Continues to Stretch and Conflate Definitions to Support its Claim

to Legal Authority for Co-Permittees. ........................................................ 62. Region Erroneously Relies on Section 212 Definition of POTW for

Federal Grants to Interpret NPDES Permitting Provisions......................... 93. The Towns Are Not Direct Discharges And Are Not Required To Have

NPDES Permits......................................................................................... 114. Region 1 Still Has Not Explained The Scope Of Its NPDES Authority. . 13

B. The Absence Of EPA Authority To Make The Towns Co-Permittees IsBorne Out By The Permitting Process And EPA’s NPDES ProgramRegulations ............................................................................................................14

C. The Region’s Approach Is a Legislative Rule that Must Be Subject toNotice and Comment. ............................................................................................211. Court Decisions Do Not Support the Region’s Claim That Its Analysis Is

Interpretive. ............................................................................................... 212. EPA’s Past Rule Making Inquiries Contradict The Region’s Analysis And

Claim That It Is Interpretive. .................................................................... 26D. Role of MassDEP Regulations at 314 CMR 12.00, as revised, was not

properly considered in issuing the Permit; Regions Actions areunnecessary and inconsistent with MassDEP’s current regulations. .....................27

E. The Unclear Wording of the Permit Leaves Open the Possibility that theDistrict and/or Other Towns Could be Held Responsible for a TownViolation. ...............................................................................................................28

CONCLUSION............................................................................................................................. 30

ii

TABLE OF AUTHORITIES

Cases

American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106, (1993)......... 21, 22Appalachian Power Company v. Environmental Protection Agency, 208 F.3d 1015,

(2000).................................................................................................................................. 21, 24General Electric Company v. Environmental Protection Agency, 290 F.3d 377, 382

(2002)............................................................................................................................ 23, 24, 25In re Upper Blackstone Water Pollution Abatement District, NPDES Appeal Nos. 08-

11 to 08-18 & 09-06, 14 E.A.D. 577 .......................................................................................... 3Iowa League of Cities v. Environmental Protection Agency, 711 F.3d 844, 875 (2013)............. 22Montgomery v. Costle, 646 F.2d 568, 591 (U.S.App.D.C. 1980) ............................................... 10Syncor International Corp. v. Shalala, 127 F.3d 90, (1997) ............................................. 22, 24, 25United States v. Borowski, 977 F.2d 27 (1st Cir. 1992)............................................................... 10Upper Blackstone, 577-78 .............................................................................................................. 4Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 504 (2d Cir. 2005).......................................... 9

Statutes

§ 1316 (CWA Section 306)............................................................................................................. 8§ 1328 (CWA § 318)....................................................................................................................... 8§ 1342 (CWA § 402)....................................................................................................................... 8§ 1344 (CWA § 404)....................................................................................................................... 8CWA § 301(a)............................................................................................................................... 14CWA § 301(e)................................................................................................................................. 8CWA § 302 ..................................................................................................................................... 8CWA § 402(a)........................................................................................................................... 8, 14CWA § 402(a)(1) ............................................................................................................................ 8CWA § 502(12)......................................................................................................................... 8, 20CWA § 502(16)............................................................................................................................... 8CWA § 502(4)............................................................................................................................... 13M.G.L. c. 21, § 28........................................................................................................................... 2M.G.L. c. 21, Section 26 – 53......................................................................................................... 5Section 1317 (CWA § 307)............................................................................................................. 8

Regulations

(C.F.R.) 122.21(a)......................................................................................................................... 20314 CMR 12.00............................................................................................................................. 27314 CMR 12.03(4), (10), and (11); 12.04(4); 12.05(5), (6) and (12); and 12.07(7)..................... 27314 CMR 12.04(2) .................................................................................................................. 27, 28314 CMR 3.00................................................................................................................................. 533 USC § 1312................................................................................................................................ 840 C.F.R. § 122.21 ...................................................................................................... 14, 15, 17, 1840 C.F.R. § 122.21(a).................................................................................................. 14, 15, 17, 1840 C.F.R. § 122.21(a)(i)................................................................................................................ 14

iii

40 C.F.R. § 122.21(e)(2)............................................................................................................... 1840 C.F.R. § 122.22 .................................................................................................................. 17, 1940 C.F.R. § 124.19(a)(3) and § 124.20(d) ...................................................................................... 140 C.F.R. § 403.1 .......................................................................................................................... 1140 C.F.R. § 403.3(q) ........................................................................................................... 9, 10, 1240 C.F.R. §124.19(a)................................................................................................................... 1, 240 C.F.R. 122 .................................................................................................................................. 840 C.F.R. 122.2 ................................................................................................................. 11, 12, 2040 C.F.R. 35.905 ........................................................................................................................... 1440 C.F.R. part 124........................................................................................................................... 240 CFR 122.41(a)......................................................................................................................... 2940 CFR § 122.21 (a)-(c)................................................................................................................ 1440 CFR 124.19(a)(4)....................................................................................................................... 6

iv

LIST OF ATTACHMENTS

Attachment A

LIST OF EXHIBITS

Exhibit A – EPA and MassDEP Joint Response to Public Comments, Charles River PollutionControl District, NPDES Permit Number MA0102598

Exhibit B – Application of Charles River Pollution Control District, June 2, 2004

Exhibit C – EPA Region 1 NPDES permitting approach for publicly owned treatment worksthat include municipal satellite sewage collection systems

1

INTRODUCTION

Pursuant to 40 C.F.R. §124.19(a), the Upper Blackstone Water Pollution Abatement

District and the Towns of Bellingham, Franklin, Millis and Medway, Massachusetts

(“Petitioners”) petition for review of the conditions of National Pollutant Discharge Elimination

System (“NPDES”) Permit No. MA 0102598 (the “Permit”) that was issued to the Charles River

Pollution Control District (the “District” or “CRPCD”) on July 23, 2014 by the United States

Environmental Protection Agency Region 1 (“Region 1” or the “Region”).1 The District’s

facility collects and treats wastewater from the Towns of Franklin, Medway, Millis and

Bellingham, Massachusetts (the “Towns”). Petitioners contend that certain conditions are based

on clearly erroneous findings of fact and conclusions of law or present an exercise of discretion

or an important policy consideration that the Environmental Appeals Board (“Board” or “EAB”)

should, in its discretion, review. Specifically, Petitioners challenge the following permit

conditions:

1. The inclusion of the Towns as co-permittees for specific activities required at

Sections I.B – Unauthorized Discharges - and I.C – Operation and Maintenance of the Sewer

System, which include conditions regarding operation and maintenance of the collection systems

(at page 1 of 15 of the Permit).

2. The applicability of Part I.B. – Unauthorized Discharges - to co-permittees (at

page 7 of 15 of the Permit).

3. The applicability of Part I.C. – Operation and Maintenance of the Sewer System –

to “each co-permittee…for the collection system which it owns” (at pages 7-9 of 15 of the

Permit).

1 The Permit was signed on July 23, 2014, and mailed via certified mail on July 25, 2014, received by Petitionerson July 28, 2014. This Petition is timely filed within 30 days in accordance with 40 C.F.R. § 124.19(a)(3) and§ 124.20(d).

2

THRESHOLD PROCEDURAL REQUIREMENTS

Petitioners satisfy the threshold requirements for filing a Petition for review under

40 C.F.R. part 124:

1. Petitioners have standing to petition for review of the Permit decision because

they participated in the public comment period on the permit. See 40 C.F.R. §124.19(a). The

Petitioners’ comment letters are in the administrative record and reproduced in the Region’s

Response to Comments (“RTC” or “Response”), attached as Exhibit A.

2. The issues raised by the Petitioners in this petition were raised during the public

comment period and therefore were preserved for review, as set forth by citation to the record in

this petition as “Comment #__” as referenced in the RTC.

FACTUAL AND STATUTORY BACKGROUND

Each of the Towns owns and operates a sewer collection system that transports sewer

flow to a wastewater treatment plant for treatment and discharge to U.S. waters. The treatment

plant is owned and operated by the District. The District was established under the provisions of

M.G.L. c. 21, § 28.

The District’s facility discharges treated wastewater to the Charles River in Medway,

Massachusetts under NPDES Permit No. MA 0102598. Over 238 miles of sewer lines contribute

to the District’s facility. Approximately 13 miles of interceptor lines are owned and operated by

the District. Town owned satellite sewer collection systems consist of: approximately 125 miles

owned by Franklin, 53 miles owned by Medway, 27 miles owned by Millis, and 22 miles owned

by Bellingham.

On June 2, 2004, the District submitted to the Region NPDES Forms 2A and 2S to fulfill

renewal requirements for Permit No. MA 0102598 for the District’s wastewater treatment

3

facility. Exh. B. None of the Towns participated in the District’s application as a co-applicant or

sought to be identified as a “co-permittee” in connection with the District’s June 2, 2004 renewal

application. None of the Towns signed or certified CRPCD’s application form. See Exh. B, p. 9

of 21. None of the Towns separately made any application for or asked the Region to include

them as a co-permittee to District’s permit.

On July 3, 2008, the Region and the Massachusetts Department of Environmental

Protection (MassDEP) released a Draft Permit for the District wastewater treatment facility for

public review and comment. The public comment period closed on August 1, 2008. Numerous

comments were made, including comments from the CRPCD and its member communities. See

Exh. A, pp. 1-2. Among the issues raised by the comments was the legal basis for including the

Towns as “co-permittees” to the NPDES Draft Permit. The Draft Permit requirements that

applied to the co-permittees were Sections I.B and I.C., which concern sewer system operation

and maintenance and unauthorized discharges.

After the public comment period closed in 2008, the Board issued a decision questioning

the policy basis and legal authority for identifying owners and operators of satellite collection

systems as co-permittees in NPDES permits. On May 28, 2010, the Board issued a decision

remanding to the Region NPDES permit provisions that included and regulated satellite

collection systems as co-permittees in the matter of In re Upper Blackstone Water Pollution

Abatement District, NPDES Appeal Nos. 08-11 to 08-18 & 09-06, 14 E.A.D. 577 (Order

Denying Review in Part and Remanding in Part, May 28, 2010).

http://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/NPDES%20Permit%20Appeals%20(CWA)/F

22DB97558D954F2852578E00070F961/$File/Upper%20Blackstone.pdf. The Region’s position

before the Board in the Upper Blackstone matter was that its NPDES jurisdiction encompassed

4

not only the treatment plant but also separately owned and operated collection systems that

discharge into the treatment plant. The Board, however, held that “where the Region has

abandoned its historical practice of limiting the permit only to the legal entity owning and

operating the wastewater treatment plant, the Region had not sufficiently articulated in the record

of this proceeding the statutory, regulatory, and factual bases for expanding the scope of NPDES

authority beyond the treatment plant owner and operator to separately owned and operated

collection systems that do not discharge directly to waters of the United States, but instead that

discharge to the treatment plant.” Upper Blackstone, at 577-78.

The Board further stated that in the event the Region decided to include and regulate

municipal satellite collection systems as co-permittees in a future permit, it should consider and

address the following several questions:

(1) In the case of a regionally integrated POTW composed of municipal satellitecollection systems owned by different entities and a treatment plant owned by another, isthe scope of NPDES authority limited to owners/operators of the POTW treatment plant,or does the authority extend to owners/operators of the municipal satellite collectionsystems that convey wastewater to the POTW treatment plant?

(2) If the latter, how far up the collection system does NPDES jurisdiction reach, i.e.,where does the “collection system” end and the “user” begin?

(3) Do municipal satellite collection systems “discharge [ ] a pollutant” within themeaning of the statute and regulations?

(4) Are municipal satellite collection systems “indirect dischargers” and thus excludedfrom NPDES permitting requirements?

(5) Is the Region’s rationale for regulating municipal satellite collection systems as co-permittees consistent with the references to “municipality” in the regulatory definition ofPOTW, and the definition’s statement that “[t]he term also means themunicipality…which has jurisdiction over the Indirect Discharges to and the dischargesfrom such a treatment works”?

(6) Is the Region’s rationale consistent with the permit application and signatoryrequirements under NPDES regulations?

Upper Blackstone, at 591, n. 17.

5

Thereafter, the Region and MassDEP partially reopened the District’s Draft Permit for

public comment on, among other issues, the addition of co-permittees to impose conditions

relating to sewer system operation and maintenance and unauthorized discharges. In that 2012

partially revised Draft Permit, the Towns remained listed as co-permittees. The fact sheet for the

2012 partially revised Draft Permit included, at Attachment 1, a document entitled “EPA

REGION 1 NPDES PERMITTING APPROACH FOR PUBLICLY OWNED TREATMENT

WORKS THAT INCLUDE MUNICIPAL SATELLITE SEWAGE COLLECTION SYSTEMS”

(“Region’s Analysis”). Exh. C. This document, according to Region 1, establishes its legal

authority to include satellite communities as co-permittees.

Following issuance of the partially revised Draft Permit, each Town, the UBWPAD, and

CRPCD provided comments disputing the Region’s legal authority and policy reasoning for

including as co-permittees the owners and operators of separate sewer collection systems that

convey sewage to the CRPCD’s facility for treatment and discharge. See generally, Exh. A.

On July 23, 2014 the Region issued the final permit with the contested co-permittee

provisions. The Permit is available here

http://www.epa.gov/region1/npdes/permits/2014/finalma0102598permit.pdf and at EPA’s

website, along with the Region’s Response.

PARALLEL PROCEEDINGS

In addition to this petition, the Petitioners have appealed the Surface Water Discharge

Permit ("SWDP") issued by MassDEP on July 23, 2014 pursuant to M.G.L. c. 21, Section 26 –

53 and 314 CMR 3.00.

6

TERMS AND CONDITIONS APPEALED

The EAB may review and remand permits where the Regional office of EPA has made

determinations based on clearly erroneous findings of fact or conclusions of law, or present an

exercise of discretion or an important policy consideration that the Board should, in its

discretion, review. 40 CFR 124.19(a)(4). As set forth below, the Petitioners seek review of

certain terms and provisions of the Permit. The Petitioners have identified each of those terms

and provisions at page 1 above, and in Attachment A and hereby incorporates Attachment A as

part of this Petition. All provisions of the Permit which are not appealed by this Petition or

included in Attachment A are severable from the appealed provisions that would be effective on

the effective date of the Permit.

ARGUMENT

A. The Region Lacks Legal Authority To Make The Towns’ Collection SystemsSubject To NPDES Permitting.

The Region has no legal authority under the Clean Water Act (“CWA”) or any NPDES

regulation, and has provided no sound factual basis, to include the Towns, as owners or operators

of sewer lines that convey waste water to a separately owned POTW treatment plant for

treatment and discharge of pollutants from a point source to a navigable water, as “co-

permittees” to the Permit.

1. Region Continues to Stretch and Conflate Definitions to Support its Claim toLegal Authority for Co-Permittees.

The Towns provided comments on the Region’s Analysis issued with the draft permit,

noting among other the things, the absence of legal authority and the Region’s failure to

acknowledge or reference the operative terms of the CWA that trigger NPDES permitting.

Contrary to Region’s position, the operative and triggering terms are: “discharge of any pollutant

by any person” from a point source; that it is the act of discharging a pollutant from a point

7

source that gives rise to NPDES permitting; and that ownership of a collection system, even as

part of a greater POTW, does not require a NPDES permit under the CWA; and that the Towns’

collection systems have no point source, as they send wastewater to a separately owned

treatment plant for treatment and discharge at a point source. Comment #4, #34-35, #43.

In it Response, the Region makes the conclusory claim that the “Towns may be subjected

to NPDES permitting requirements because they operate portions of the POTW that discharge to

U.S. waters,” and the Towns’ objection relies on an “overly narrow interpretation” of “point

source.” (RTC# 34 and #35). The Region’s Response misses the mark. The Towns are not

persons who discharge from a point source; the Towns are not “dischargers,” and EPA’s

authority to “regulate dischargers” is limited to CRPCD, as a facility that conducts an activity

that is subject to regulation under the NPDES program.

The Region notes that the term “point source” includes “any discernable, confined, or

discrete conveyance, including . . . any pipe” and concludes that because the Towns have

collection systems (i.e., pipe), they must fall within the broad definition of “point source.” (RTC

#34). The Region, however, ignores the critical words that follow “any discernable, confined, or

discrete conveyance . . .” - “from which pollutants are discharged.” (Emphasis supplied). There

is no “discharge” from the several Town conveyance systems. And in this case, there is but one

discharge point authorized in the Permit. See Permit Part I. A. 1. (“the permittee [i.e. CRPCD] is

authorized to discharge treated effluent from outfall serial number 001 to the Charles River,” and

at B, “the permit only authorizes discharge in accordance with . . . this permit and only from the

outfall listed in Part I. A.1.”). It is that point source “from which pollutants are discharged” that

triggers NPDES permitting, and only those persons who own or operate that point source are

subject to such permitting. That point source is not owned or operated by the Towns.

8

The Region now claims the “point source” is the entire POTW. (RTC #35). “[T]he

point source in question here is not merely Outfall 001, it is the entire POTW”. (RTC # 43).

According to the Region, because the Towns’ collection systems comprise a portion of the

POTW and are therefore subject to NPDES permitting. (RTC #34, #35). The Region’s position

in its Response defies all logic – as there must be some “point” “from which” there is a

discharge to navigable waters that triggers NPDES permitting – and the permitting scheme

established by the CWA and comprehensive NPDES permitting regulations at 40 C.F.R. 122.

Section 301(a) of the CWA states that the discharge of any pollutant is prohibited “except

as in compliance with the law:”

Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and1344 of this title2 the discharge of any pollutant by any person shall be unlawful.

The term “discharge of a pollutant” means “any addition of any pollutant to navigable waters

from any point source.” CWA § 502(12). “The term ‘discharge’ when used without qualification

includes the discharge of a pollutant and a discharge of pollutants.” CWA § 502(16). Thus,

under the CWA, it is only those persons who discharge a pollutant from any point source to

navigable waters who are subject to NPDES permitting. Said differently, it is the act of

discharging a pollutant from a point source that gives rise to NPDES permitting.

CWA § 402(a)(1) authorizes EPA to “issue a permit for the discharge of any pollutant.”

The CWA authorizes the EPA to issue permits for the discharge of pollutants to “persons” who

discharge and to promulgate effluent limitations for—and issue permits incorporating those

effluent limitations for—the discharge of pollutants. CWA § 301(e) provides that “[e]ffluent

limitations ... shall be applied to all point sources of discharge of pollutants.” Unless there is a

2 33 USC § 1312 (CWA § 302) deals with water quality related effluent limitations; § 1316 (CWA Section 306)deals with the national standards of performance for new sources; Section 1317 (CWA § 307) deals with toxic andpretreatment effluent permits; § 1328 (CWA § 318) deals with agriculture projects; § 1342 (CWA § 402) deals withNPDES permit requirements; and § 1344 (CWA § 404) deals with permit for dredged or fill material.

9

“discharge of any pollutant,” there is no statutory obligation to seek or obtain an NPDES permit.

Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 504 (2d Cir. 2005). Because the Towns, under

these terms, do not “discharge . . . any pollutant,” they are not subject to NPDES permitting.

The Region continues to conflate the term “discharge” used in “discharge of a pollutant”

with the “transfer of flow” or “conveyance” from a municipal conveyance system to the

treatment plant or works that has a point source “from which pollutants are discharged.” The

facts are plain and have not changed: the Towns do not “discharge” pollutants to waters of the

United States; wastewater flow is conveyed or otherwise transferred through municipal

collection systems to the treatment plant or works for treatment; treated flow is then discharged

by the District’s POTW in compliance with the law and Section 301(a) of the CWA. Transfer of

waste water flow from Town satellite collections systems does not constitute a “discharge” as the

term is defined, and does not trigger a need for any NPDES permit because the “point source” is

subject to a NPDES Permit No. MA 0102598 issued to CRPCD.

2. Region Erroneously Relies on Section 212 Definition of POTW for FederalGrants to Interpret NPDES Permitting Provisions.

The Region relies upon a definition of “publicly owned treatment works” or POTW that

has no application to the provisions of the CWA requiring persons who discharge any pollutant

from a point source do so lawfully. The Region states:

Under EPA’s regulations, a POTW “means a treatment works as defined by Section 212of the Act, which is owned by a state or municipality (as defined by Section 502(4) of theact).” 40 C.F.R. § 403.3(q).

(RTC #34). Section 212 of the CWA, however, explicitly states that the definitions it contains

are “as used in this subchapter.” Subchapter II of the CWA deals with “grants for the

construction of treatment works,” and the definition of “treatment works” in that chapter was

intentionally broad so that federal grants program could provide financing for collection systems

10

as well as for treatment plants. This broad definition does not apply to subchapter III of the

CWA which addresses NPDES permitting requirements and provides that “the discharge of any

pollutant by any person shall be unlawful” absent compliance with permitting provisions. Courts

considering Section 212 have stated:

The legislative history [of the Act]. . . indicates that the broad definition of treatmentworks in section 212 was viewed as an expansion beyond the common meaning of theword, an expansion justified by the context of federal grant authorizations. For example,the Senate Public Works Committee Report urged that “it would be unwise to excludefrom the construction grant program facilities that in some instances could achieve waterquality objectives on a far more economical and efficient basis than through theconstruction of treatment facilities. (citations omitted) . . .. Thus neither the language ofthe Act nor its history supports the conclusion that the definition of “treatment works” insection 212 should be viewed as supplying the meaning of that term in section 301.”

Montgomery v. Costle, 646 F.2d 568, 591 (U.S.App.D.C. 1980).

The Region relies upon United States v. Borowski, 977 F.2d 27 (1st Cir. 1992) to support

its use of “treatment works” as defined in Section 212 regarding federal grants to interpret

NPDES permitting provisions. (RTC #34). In that case, the court considered the definition of

“treatment works” to address the question, raised by the EAB in the Upper Blackstone matter, on

whether the POTW extends through a private party’s own pipes right up to the sink drain where

defendants, in that case, dumped materials. The court wanted to know what is “publicly owned”

and notes that “part of the significance of the definition of what is public relates to the allocation

of costs so that federal funding for capital costs of publicly-owned systems can be recovered

from industrial users.” Id at 30, n. 5. Thus, contrary to the Region’s assertion Borowski

confirms that “treatment works” as defined by § 212 applies to grants for construction, and not

for the purpose of determining persons subject to NPDES permitting.

Similarly, 40 C.F.R. § 403.3(q), upon which the Region also relies to say a POTW is a

point source, deals not with permitting required of “direct discharges” under Section 301(a) of

the CWA, but instead pre-treatment regulations for industrial discharges to POTWs. See 40

11

C.F.R. § 403.1 (limiting application of Part 403 to pollutants from non-domestic sources covered

by pretreatment standards indirectly introduced to POTWs).

The Region’s definition of POTW simply does not apply to NPDES permitting

requirements. Moreover, the Region’s position that the collection system is part of the POTW

does not advance its argument that “satellite collection systems” should be deemed “co-

permittees” in NPDES permits. While the Region seeks “to refashion permits issued to

regionally integrated POTWs to include all owners/operators of the treatment works (i.e., the

regional centralized POTW treatment plant and the municipal satellite collection systems),”

permit conditions “pertain only to the portions of the POTW collection system that the satellites

own.” Region’s Analysis, p. 7. See Permit I.1.C. Because the Towns do not own or operate the

point source – Outfall 001 – they are not a person who may be subject to a NPDES permit.

3. The Towns Are Not Direct Discharges And Are Not Required To HaveNPDES Permits.

The definition of “discharge of a pollutant” includes “addition of pollutants into waters of

the United States from: . . . discharges through pipes, sewers or other conveyances owned by a . .

. Municipality . . . which do not lead to treatment works.” See 40 C.F.R. 122.2 (persons who

“discharge[] through pipes, sewers, or other conveyances owned by a . . . municipality which do

not lead to a treatment works” are persons who “discharge [ ] a pollutant” under 40 C.F.R. 122.2.

(emphasis supplied). The Region, at footnote 12 of the Analysis, states that it is erroneous to

argue the converse: that pollutants to waters of the United States via pipes to a treatment plant

are not a “discharge of a pollutant.” In support of that position, the Region said that there is

“[o]nly one category of such discharges excluded: indirect discharges.” In their comments, the

Towns noted that while it is true that the definition of “discharge of a pollutant” at 40 C.F.R.

122.2 excludes pollutants from “indirect discharges,” that does not mean that only “indirect

12

dischargers” fall outside the scope of “discharge of a pollutant” or that an interpretation of the

definition of “discharge of a pollutant” which excludes waste water from separately owned

collection systems is not reasonable in light of the definition of other terms, described above, that

require permitting for point sources. Comment #35. The use of the term “treatment works” as it

appears in the regulatory definition of “discharge of a pollutant” does not preclude this rational

interpretation.

In its RTC, the Region says that the Towns’ comments "imply that they should be treated

as indirect discharges,” and then says the indirect discharger is limited to only those persons

subject to separate pretreatment standards. (RTC # 35). Nothing, however, in the CWA or

permitting regulations says that “indirect dischargers” are the only persons subject to separate

pretreatment standards, that others are not excluded from the permitting requirements, or that

waste water from separately owned collection systems would not fall into this excluded category.

Rather, consistent with the Town’s position, the term “indirect discharger” at 40 C.F.R. 122.2 is

defined broadly to mean “a non-domestic discharger introducing ‘pollutants’ to a [POTW].” The

Town’s systems convey sanitary sewage and non-domestic wastewater to the treatment

facility/POTW prior to discharge.

The Region says the Towns rely on an “overly restrictive interpretation of POTW.” (RTC

#36). The Region’s position, however, is not consistent with the references to “municipality” in

the definition of POTW found at 40 C.F.R. § 403.3(q), and the definition’s statement that “[t]he

term also means the municipality . . . which has jurisdiction over the Indirect Discharges to and

the discharges from such a treatment works.” The final sentence of the regulatory definition of

POTW in the pretreatment regulations at 40 C.F.R. § 403.3(q), refers to municipalities that have

“jurisdiction over . . . the discharges from such a treatment works.” The term “municipality” as

13

defined in CWA § 502(4) “means a city, town, borough, county, parish, district, association, or

other public body created by or pursuant to State law and having jurisdiction over disposal of

sewage, industrial wastes, or other wastes . . . .” (emphasis supplied). The Towns have

jurisdiction over only their collection systems. They have no jurisdiction over the treatment

plant or point source of discharge. Thus, the Region’s position that a satellite collection system is

part of a POTW is inconsistent with the final sentence of the regulatory definition of POTW in

the pretreatment regulations.

4. Region 1 Still Has Not Explained The Scope Of Its NPDES Authority.

Before the EAB in the Upper Blackstone matter, the Region argued, in response to the

question of how far up the collection systems the Region’s legal reasoning would allow the

Region to impose co-permittee requirements, that it “‘would regulate it in the same way’ as a

single-entity POTW. EAB Oral Argument Transcript (“Tr.”) at 70. ‘We can regulate that which

is legally part of the POTW that falls within the definition of POTW.’” Upper Blackstone at

587. EAB rejected this argument by the Region with its remand of the co-permittee provisions

in its decision in Upper Blackstone.

Nevertheless, the Region makes the same argument here in its Analysis and RTC: “[A]

satellite collection system owned by one municipality that transports municipal sewage to

another portion of the POTW owned by another municipality can be classified as part of a single

integrated POTW system discharging to waters of the U.S.,” Analysis, pp. 10 – 11, and may be

subject to NPDES permitting requirements because “they operate portions of the POTW that

discharge to U.S. waters.” (RTC #34 #35). It was that analysis that EAB found troubling, and

which the Region still does not explain: “the extent to which collection systems not owned by the

entity owning or operating the treatment works are subject to NPDES permitting.” Upper

Blackstone at 587.

14

The Region also says it relies upon the definition of “sewage collection system” at 40

C.F.R. 35.905; and that that provision sets forth the test for determining where the POTW ends

in the users begin. (RTC # 46). That definition, however, applies only to federal grants for

construction of treatment works. See 40 C.F.R. 35.905 (limiting definitions for use in subpart

governing grants for construction of treatment works by the words “as used in this subpart”).

Despite the EAB’s remand in Upper Blackstone on the co-permittee issue, the Region’s

Analysis and its RTC does not provide or set forth authority for expanding the scope of NPDES

authority beyond the treatment plant owner and operator to separately owned and operated

collection systems that discharge to the treatment plant. Accordingly, the Board should remand

the Permit to the Region with the order to strike the “co-permittee” provisions from the Permit.

B. The Absence Of EPA Authority To Make The Towns Co-Permittees Is Borne OutBy The Permitting Process And EPA’s NPDES Program Regulations

Consistent with the CWA, EPA regulations require persons “who discharge pollutants” to

have a NPDES Permit. See CWA § 301(a)(“except in compliance with this section and [other

sections] of this title, the discharge of any pollutant by any person shall be unlawful”), and CWA

§ 402(a)(authorizing EPA to issue a permit “for the discharge of any pollutant“). Similarly, 40

C.F.R. § 122.21(a), entitled “Duty to Apply,” provides that “[a]ny person who discharges or

proposes to discharge pollutants . . . must submit a complete application . . . in accordance with

this section [122.21] and part 124 of this chapter.” 40 C.F.R. § 122.21(a)(i). (Emphasis

supplied). Throughout, the permit application regulations at 40 C.F.R. § 122.21 contemplate that

it is the “person” who discharges pollutants who must obtain a NPDES Permit. See 40 CFR

§ 122.21 (a)-(c) (imposing obligations on persons who must apply or “applicants”). Consistent

with CWA, it is the person who discharges a pollutant from a point source who is subject to

NPDES permitting requirements.

15

The Towns made no application for any NPDES permit. Exh. B. The Towns noted in

their comments that nothing in 40 C.F.R. § 122.21 requires or suggests that “satellite collection

systems” need to make application for a NPDES permit. Comment #37. Nowhere in 40 C.F.R.

§ 122.21 is there any reference to “co-permittee” or any suggestion that separately owned and

operated conveyance systems are subject to NPDES permitting.

In the face of the clear duty upon persons who discharge to apply for a permit, the

absence of any application by any Town, and no “co-permittee” provisions in its regulations, the

Region now says NPDES application requirements do not:

preclude it from framing an NPDES permit based on [the statutory authorities underlyingthe NPDES permitting program] to encompass owners and operators of portions of thePOTW that are "up system" of the ultimate up of outfall point . . . . It is sufficient thatthe Act and implementing regulations make reference to discharges of pollutants frompoint sources to U.S. waters. . . . Accordingly, the permit application requirements arenot dispositive of the question of whether the Region is legally authorized to imposeNPDES permit requirements on portions of the treatment works beyond the treatmentplant.

(RTC #37).

First, the Towns disagree. The statutory authorities and regulations referenced by the

Region do not reflect EPA authority to impose NPDES permit requirements on the Towns. Nor

has the Region justified its abandonment of the Region’s historic practice of limiting the NPDES

permit to the only the legal entity owning or operating the wastewater treatment plant which

treats and discharges pollutants to U.S. waters.

Second, it is irrational, arbitrary and an error of fact and law for the Region to say in the

same breath that owners and operators of satellite collection systems are persons who discharge

from a point source, but are also persons who have no duty to apply for a permit under 40 C.F.R.

§ 122.21(a) under the NPDES regulatory scheme. But this is exactly what the Region says. “40

C.F.R. § 122.21(a) applies to the Towns because they are a point source dischargers [sic]

16

discharging pollutants to portions of the POTW operated by them.” (RTC #37). The Region

then conclusively claims “there is nothing to indicate that EPA is barred from issuing a permit

that covers each of the several operators of the regionally integrated POTW, where the combined

discharge flows through a single outfall.” In short, Region claims that the Towns – are

“dischargers” – yet even when characterized as “dischargers” the Region finds, contrary to

regulation, that the Towns need not apply because nothing bars the Region from issuing a permit.

The question raised by the Towns’ comments, and by the EAB in the Upper Blackstone matter,

is not whether there is a specific prohibition in regulations, but rather whether the Region has

authority to include as co-permittees in a NPDES permit the owners and operators of separately

owned satellite collection systems, where those owners did not apply, sign, or certify any

application for such a permit. To say, in sum “there is nothing barring us” from issuing a permit

falls far short of the mandate set by the EAB in Upper Blackstone and fails to demonstrate any

authority to do so.

Third, in choosing to ignore its own regulations, the Region would instead leave it to the

whim of its permit writers to determine whether the separately owned collection systems need to

apply or reapply to insure compliance with the CWA. The Region states:

Satellite collection system operators have generally not submitted separate permitapplications for coverage under the POTW permit, because the treatment plant operatorgenerally submits the information necessary for the permit writer to write terms andconditions in the permit applicable to all components of the POTW on the basis of thetreatment plants’ application. Whether or not to require additional information from asatellite collection system by way of an application is separate and apart from whether thecollection system should be named as a co-permittee on the POTW permit. Both are caseby case decisions, one based on the information available to the permit writer; the secondbased on whether the permit writer determines that specifying co-permittees on thePOTW permit is necessary for all terms and conditions of the permit to be implemented.

(RTC #37). Under the Region’s Analysis, the Towns would have no way of knowing whether

they need apply, whether information provided by the POTW’s permit application is

17

“necessary,” what terms and conditions the permit writer may consider “necessary” or as

applicable to them, and whether there is any duty to reapply prior to the Permit’s expiration to

assure compliance with CWA. The Region’s approach is a stunning departure not only from its

historic practice of not including owners and operators of collection systems in NPDES permits,

but also from the regulatory framework set forth at 40 C.F.R. § 122.21 and in EPA’s Permit

Writers’ Handbook. In short, the “Duty to Apply” at 40 C.F.R. § 122.21(a), providing that

“[a]ny person who discharges or proposes to discharge pollutants . . . must submit a complete

application . . . in accordance with this section [122.21] and part 124 of this chapter,” cannot be

taken out of the permitting process, as the Region would have it in order to impose NPDES

obligations upon the Towns.

In its Analysis, the Region states it would have “waived” the Towns’ permit applications

and all requirements of 40 C.F.R. § 122.21. The Region instead now says that it has not waived

the application requirement. Rather, it says that it still “required and received an application from

the POTW discharge by the District,” and has decided to waive the permit application and

submittal requirements applicable to the municipal collection systems, including signatory

requirements. (RTC #39). The Region claims Section 122.21(j) allows it to do so.

However, nothing in Section 122.21(j) suggests the Region may waive the requirement at

40 C.F.R. § 122.21 (a)(1) mandating an application from those persons who discharge from a

point source. Likewise, nothing in Section 122.21(j) suggests EPA may waive the requirement

for application signatures and certifications and authorizations required by 40 C.F.R. § 122.22,

none of which the Towns have provided. EPA seeks to ignore its own regulations and to issue a

permit for which the Towns have not applied and do not consent.

18

First, the Region cannot unilaterally waive requirements of an application without a

request to do so. The person must seek a waiver and that waiver must be approved by EPA. 40

C.F.R. § 122.21(e) requires a complete application before EPA may issue a permit “([EPA] shall

not issue a permit before receiving a complete application for a permit”), and a “waiver

application” must be made, and approved, or not acted upon by EPA. 40 C.F.R. § 122.21(e)(2)

provides:

A permit application shall not be considered complete if a permitting authority haswaived application requirements under paragraphs (j) or (q) of this section and EPA hasdisapproved the waiver application. If a waiver request has been submitted to EPA morethan 210 days prior to permit expiration and EPA has not disapproved the waiverapplication 181 days prior to permit expiration, the permit application lacking theinformation subject to the waiver application shall be considered complete.

The Towns have not only made no application for any NPDES permit, they have made no

application for a waiver from the application requirements.

Second, § 122.21(j) provides that:

Permit applicants must submit all information available at the time of permitapplication. . . . The Director may waive any requirement of this paragraph if he or shehas access to substantially identical information. (emphasis supplied).

The Region says that the phrase “any requirement of this paragraph” in 40 C.F.R.

§ 122.21(j) includes the requirement to submit a waiver application in the first place. (RTC #40).

This is nonsense. The duty to seek a waiver stems from 40 C.F.R. § 122.21(e)(2), quoted above.

The Region cannot unilaterally waive the waiver application or the need for an application

itself. 40 C.F.R. § 122.21(j) says only that the “Director may waive any requirement of this

paragraph if he or she has access to substantially identical information.” Section 122.21(j) does

not trump the requirement at 40 C.F.R. § 122.21(a)(1) mandating an application from those

persons who discharge from a point source.

19

Finally, the Region says it can also waive the signatory requirements because (1) it has a

signature from the operator of the POTW, and (2) the signature requirement is included in 40

C.F.R. § 122.21(j), which it can waive too. (RTC #40). The Region ignores the certification

required by 40 C.F.R. § 122.22 that is to accompany the signature. Nothing in Section 122.21(j)

allows EPA to waive the requirement at 40 C.F.R. § 122.22. Moreover, the process that the

Region envisions for permitting co-permittees would cause the Towns to rely solely upon the

information about its systems provided in Form 2A, requiring detailed information about the

“treatment works” and no information about their collection systems. See Form 2A at

http://www.epa.gov/npdes/pubs/final2a.pdf and Exh. B. The application is signed and certified,

not by the Towns individually, but instead solely by the operator of the POTW. The Towns have

not delegated any such authority to the POTW. Exh. B. As noted above, the Region’s proposed

permitting scheme inappropriately leaves solely to the permit writers discretion whether a

satellite collection system needs to make application for a NPDES permit. The Region should

not be allowed to ignore EPA’s own regulations and EPA’s Permit Writers’ Manual in favor of

creating a regional interpretation of the CWA, a federal statute equally applicable to all states

and EPA regional offices.

As one might expect, EPA’s Permit Writers’ Manual says nothing about permitting

satellite collection systems as part of a greater POTW. Indeed, EPA’s Permit Writers’ Manual

make no reference to permitting of satellite collection systems or to the owner of such systems

being subject to a NPDES permit as a co-permittee. See EPA NPDES Permit Writers’ Manual,

September 2010 http://www.epa.gov/npdes/pubs/pwm_2010.pdf. Instead, the Permit Writers’

Manual supports the Towns’ position. The Permit Writers’ Manual says: “Under the national

program, NPDES permits are issued only to direct dischargers.” Permit Writers’ Manual Section

20

1.3.4. (emphasis supplied). A “direct discharge” means the “discharge of a pollutant” and

“discharge of a pollutant” means “any addition of any pollutant to navigable waters from any

point source.” (Emphasis supplied). CWA § 502(12),. 40 C.F.R. 122.2.

Section 4.1 of Permit Writers’ Manual addresses “Who Applies for a NPDES Permit?”

No mention is made in this section to satellite collection systems or to the owners of such

systems. Instead, the Permit Writers’ Manual states:

The NPDES regulations at Title 40 of the Code of Federal Regulations (C.F.R.) 122.21(a)require that any person, except persons covered by general permits under § 122.28, whodischarges pollutants or proposes to discharge pollutants to waters of the United Statesmust apply for a permit. Further, § 122.21(e) prohibits the permitting authority fromissuing an individual permit until and unless a prospective discharger provided acomplete application. This regulation is broadly inclusive and ties back to the CleanWater Act (CWA) section 301(a) provision that, except as in compliance with the act,“…the discharge of any pollutant by any person shall be unlawful.” In most instances, thepermit applicant will be the owner (e.g., corporate officer) of the facility. However, theregulations at § 122.21(b) require that when a facility or activity is owned by one personbut is operated by another person, it is the operator’s duty to obtain a permit. Theregulations also require the application to be signed and certified by a high-rankingofficial of the business or activity. The signatory and certification requirements are at§ 122.22. Permits (and applications) are required for most discharges or proposeddischarges to waters of the United States; however, NPDES permits are not required forsome activities as specified under the Exclusions provision in § 122.3.

Permit Writers’ Manual, Section 4.1.

Section 4.3. of the Permit Writers’ Manual addresses what forms must be submitted and

at Exhibit 4-3 describes “the types of dischargers required to submit NPDES application forms,

identifies the forms that must be submitted, and references the corresponding NPDES regulatory

citation.” As with Section 4.1 of the Permit Writers’ Manual quoted above, in Section 4.3 there

is no mention of satellite collection systems or the need for the owners of such systems to have a

NPDES permit.

The Region, in Response at RTC #42, says it can ignore the Permit Writers’ Manual, as it

is only a guidance and not legally binding. The Region says that to the extent inferences may be

21

drawn from the Permit Writers' Manual, any inferences support the Region's approach. That is

not the case. As noted above, there is nothing in the Permit Writers’ Manual that addressees

satellite collection systems or owners of such systems as permittees. Further, the Permit Writers'

Manual description of POTW in no way supports the Regions' arguments as to the scope of its

statutory authority. Instead, the Permit Writers' Manual shows the Region's proposed permitting

scheme is without legal foundation, and is irrational, illogical and must be rejected as an error of

fact and law.

C. The Region’s Approach Is a Legislative Rule that Must Be Subject to Notice andComment.

1. Court Decisions Do Not Support the Region’s Claim That Its Analysis IsInterpretive.

The Region’s change in the legal requirements applicable to satellite collection systems is

a legislative rule issued without formal notice and comment and rulemaking in violation of the

Administrative Procedure Act (“APA”). Despite the Town’s prior comments alerting the Region

to this issue, Comments #44, #47, the Region has made errors of law and fact and issued the

Permit with co-permittee provisions in violation of the APA. The Region’s RTC, at RTC #44,

#47, fails to address the Region’s legal and factual errors identified in the Towns comments.

It is well-established that an agency may not escape the notice and comment

requirements by labeling a major substantive legal addition to a rule as a mere interpretation.

Appalachian Power Company v. Environmental Protection Agency, 208 F.3d 1015, 1024 (2000).

The courts draw a distinction between merely construing a statutory provision and actually

supplementing it, stating “instances where an agency merely declare[s] its understanding of what

a statute requires” are interpretive, whereas instances “where an agency go[es] beyond the text of

a statute ” are legislative. American Mining Congress v. Mine Safety & Health Admin., 995

F.2d 1106, 1110 (1993). In other words, a substantive rule modifies or adds to a legal norm

22

based on the agency’s own authority and because the agency is then engaged in lawmaking, it

must comply with the APA’s notice and comment requirement. Syncor International Corp. v.

Shalala, 127 F.3d 90, 95 (1997). The hallmark of an interpretative rule or policy statement is

that it cannot be independently legally enforced. Iowa League of Cities v. Environmental

Protection Agency, 711 F.3d 844, 875 (2013). In evaluating whether a rule is legislative or

interpretive, a Court must consider “(1) whether in the absence of the rule there would not be

adequate legislative basis for enforcement action or other agency action to confer benefits or

ensure the performance of duties, (2) whether the agency has published the rule in the Code of

Federal Regulations, (3) whether the agency has explicitly invoked its general legislative

authority, or (4) whether the rule effectively amends a prior legislative rule.” American Mining

Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 1111 (1993) . The presence of any

one of these factors renders a purportedly interpretive rule legislative. Syncor International

Corp. v. Shalala, 127 F.3d 90, 96 (1997) .

The Region clearly goes beyond the scope of its legislative authority in extending its

permitting policies to include municipalities as co-permitees. In the absence of this substantive

change in policy, there “would not be adequate legislative basis for enforcement action” against

the Towns. American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 1111

(1993) . Prior to approximately 2005, municipalities had never been subject to co-permitting in

this manner, despite the EPA’s history of more than three decades issuing NPDES permits. The

Region would not have, and historically has not had, jurisdiction to enforce its policies against

the municipalities absent the change proposed by the Region’s Analysis. As such, the Region’s

characterization of its co-permittee practice in its Analysis as “merely interpret[ing] existing

statutes and regulations” is misplaced. (RTC #47). The Region advanced this argument in an

23

effort to avoid the notice and comment requirements that are undeniably necessary to expand its

legislative reach and affect the Region’s desired change to regulate satellite connection systems.

The Region argues in RTC #47 that the rule could not possibly “effectively amend a prior

legislative rule” because it has never “fully promulgated any rules on permitting practices for

separately owned satellite collection facilities.” As such, the Region contends in its Analysis that

it is “simply one way that a permit can be framed to assure compliance with the Act.” (RTC

#47). This assertion is patently false. The Code of Federal Regulations provides information on

the legislative policies with respect to the regulatory scheme for the permit application process;

the EPA’s Permit Writers’ Handbook also offers guidance on how to successfully apply for a

permit. The guidance documents and regulations are binding with respect to this issuance of

permits because they lead the applicant and/or permit writer to believe that they will not be

granted a permit if they fail to conform to the document’s “guidance,” one of the hallmarks of a

binding document. General Electric Company v. Environmental Protection Agency, 290 F.3d

377, 382 (2002). As such, these documents lay out the effective “prior legislative rule,” and

notably, neither document contemplates co-permittees in the manner alleged by the Region in its

Analysis.

The Region’s Analysis expands its jurisdiction to include applicants not contemplated as

co-permittees in the Code of Federal Regulations or Permit Writers’ Handbook and unilaterally

grants itself the authority to “waive” the legal requirements for this process as outlined in the

Code of Federal Regulations (including, remarkably, the requirements that an applicant sign and

certify its permit application), blatantly amending the legislative rule. The Region’s Analysis

completely ignores the fact that its practice is directly contrary to and inconsistent with the

requirements under the Code of Federal Regulations. The mere fact that the Region believes its

24

Analysis, in all its particulars, is merely one of many interpretations, implying that it is therefore

subject to change, does not affect its binding nature. Appalachian Power Company v.

Environmental Protection Agency, 208 F.3d 1015, 1022 (2000) . These publications, masked as

explanatory guidance or interpretative rules, in their essence, are how “law is made, without

notice and comment, without public participation, and without publication in the Federal

Register or the Code of Federal Regulations,” and they are exactly the type of ad-hoc

lawmaking for which the APA notice and comments requirements exist and seek to prevent.

Appalachian Power Company v. Environmental Protection Agency, 208 F.3d 1015, 1020

(2000). Where an agency invokes its general rulemaking authority to extend its regulatory reach,

its publication is not an interpretative rule. Syncor International Corp. v. Shalala, 127 F.3d 90,

95 (1997) . An agency may not broaden the scope of the original legislation through the

implementation of an alleged “policy statement” or “interpretative rule” without fulfilling the

notice and comments requirements under the APA. Appalachian Power Company v.

Environmental Protection Agency, 208 F.3d 1015, 1024-28 (2000) . But this is exactly what the

region has done: the Region has expanded the scope of NPDES jurisdiction to include the owner

and operators of satellite collection systems.

In ascertaining whether an agency’s action constitutes a legislative rule, a court must

consider whether it, “(1) impose[s] any rights and obligations or (2) genuinely leaves the agency

and its decision makers free to exercise discretion.” General Electric Company v. Environmental

Protection Agency, 290 F.3d 377, 382 (2002). While a court may consider other factors such as

the agency’s characterization of its action and whether the action was published in the Federal

Register or the Code of Federal Regulations, “whether the action has binding effects on private

parties or the agency,” is the most important consideration. Id. Further, an agency statement

25

will be considered binding if it “appears on its face to be binding” or “is applied by the agency in

a way that indicates it is binding.” Id. at 383. “A document will have practical binding effect…

if the affected private parties are reasonably led to believe that failure to conform will bring

adverse consequences…” Id. While “enforcement discretion is relevant in determining whether

an agency intended to bind itself… [it] tells one little about whether a rule is interpretive.”

Syncor International Corp. v. Shalala, 127 F.3d 90, 96 (1997) . Here, there is little doubt the

Region’s change binds private parties.

The Region argues that that the Analysis is not an immutable, binding rule for all

permitting authorities and instead merely “describes the process of listing municipalities” as co-

permittee as “EPA Region 1’s practice.” (RTC #47). However, its argument stops short of a

complete consideration of the relevant case law. The Region’s Analysis is a binding change in

policy because it imposes obligations on the Towns that did not previously exist and, most

importantly, “has binding effects on private parties.” General Electric Company v.

Environmental Protection Agency, 290 F.3d 377, 382 (2002). Merely styling its Analysis as an

“interpretative statement” that explains its understanding of the CWA does not negate the fact

that it has a binding effect on the Towns who were included as co-permittees. The co-permittees,

despite having no intention whatsoever to be included in the permit application, will be subject to

adverse consequences for their failure to comply with permitting requirements, despite little to

no legal support for their inclusion by the Region and a lengthy history of permitting policies that

contradict those outlined in the Analysis. As such, the Region’s Analysis signifies a binding,

substantive change in its regulatory practices, regardless of whether the Region intended to

create such a change, and therefore must be considered a legislative rule subject to the notice and

comments requirements under the APA.

26

2. EPA’s Past Rule Making Inquiries Contradict The Region’s Analysis AndClaim That It Is Interpretive.

EPA’s filing of Federal Register notices on two separate occasions concerning proposed

NPDES regulatory amendments to address municipal satellite collection systems directly

contradicts Region’s claim that its Analysis is not a legislative rule subject to notice and public

comment under the APA. The Towns raised this issue in their Comments. Comment #44.

While the Region did make reference to this comment in RTC #44, the Regions response is

conclusory, elusive and erroneous. The Region claims it is entitled to have an interpretation of

the CWA and its implementing regulations that is limited to Region 1, that may differ from the

rest of the EPA.

EPA inquiries into regulatory amendments to provide authority for regulation of satellite

collection systems refute the Region’s Analysis and claim to autonomy to regulate such systems.

EPA sought through "listening sessions” information from the public concerning permitting of

satellite collection systems. See 75 Fed. Reg. 30395 (June 1, 2010) (“EPA is considering whether

to propose modifying the [NPDES] regulations as they apply to municipal sanitary sewer

collection systems”). In contemplating a potential regulatory change, EPA asked specifically for

input on the question: Should EPA propose to require permit coverage for municipal satellite

collections systems?

Similarly, in 2001, EPA began a rulemaking that purported to give the EPA direct

authority over satellite systems, in the context of a proposed rule pertaining to sanitary sewer

systems. See National Pollutant Discharge Elimination System (NPDES) Permit Requirements

for Municipal Sanitary Sewer Collection Systems, Municipal Satellite Collection Systems, and

Sanitary Sewer Overflows (proposal signed Jan. 4, 2001) (formerly available at

http://cfpub.epa.gov/npdes/regresult.cfm?program_id=4&view=all&type=3, but now withdrawn

27

from EPA’s website). EPA later withdrew that proposed rule. Until such time as EPA addresses

this issue on a national level and gives the public the opportunity review and comment on the

legal Analysis set forth by the Region, co-permittee provisions should not be set forth in the

Permit. For these reasons, the co-permittee provisions must be stricken from the Permit.

D. Role of MassDEP Regulations at 314 CMR 12.00, as revised, was not properlyconsidered in issuing the Permit; Regions Actions are unnecessary and inconsistentwith MassDEP’s current regulations.

The Region fails to explain why the operation and maintenance of the Towns' sewer

systems is not being adequately regulated under state regulations at 314 CMR 12.00. See

Comment # 49. In its Response, the Region says only that its "Analysis does not depend on the

sufficiency or insufficiency of state regulations," and goes on to state, generally, the importance

of adequate operation and maintenance of the collection systems in general. (RTC # 49).

In issuing the Permit, the Region failed to consider the April 2014 revisions to 314 CMR

12.00 which include a new section 314 CMR 12.04(2) which replaces MassDEP Policy BRP01-1

with regulations. As part of adopting these new regulations, MassDEP terminated the Policy

referenced in the Region’s Analysis.3 As noted in the Towns’ comments, the purpose of 314

CMR 12.00 is to insure “proper operation and maintenance of . . . sewer systems within the

Commonwealth,” and sets forth numerous requirements for the proper operation and

maintenance of such systems. See 314 CMR 12.03(4), (10), and (11); 12.04(4); 12.05(5), (6) and

(12); and 12.07(7). Comment #49. These MassDEP regulatory provisions are now even more

3 The Region’s Past Practice of Permitting POTWs that include Municipal Satellite Collection Systems referencesMassDEP Policy No. BRP01-1 “Interim Infiltration and Inflow Policy” which was issued in 2001 to support 314CMR 12.00: Operation & Maintenance & Pretreatment Standards for Wastewater Treatment Works and IndirectDischargers. Analysis, p. 5. In its Analysis, the Region also describes that MassDEP Policy BRP01-1 establishesconditions/requirements for POTWs to address I/I and states that “[S]ince September 2001, these requirements havebeen the basis for the standard operation and maintenance conditions related to I/I...” in NPDES permits issued bythe Region. Id. at 5

28

relevant than when the Analysis, Fact Sheet and Revised Draft Permit were issued as a result of

the April 2014 codification of enforceable I/I analysis and plans within MassDEP’s regulations.

Unlike the Region, MassDEP has clear legal authority to regulate I/I in collection systems

under the April 2014 regulatory revisions though comprehensive, enforceable regulatory

requirements. These regulations are better tailored to manage municipal sewer collection

systems connected to regional wastewater treatment facilities. In its RTC, the Region recognizes

the unique local-control structure nature of New England states as “…unusual nationwide for

the strong level of local control exercised by relatively numerous cities and towns (351) leading

to at times to extensive collection systems controlled by local authorities but discharging via a

regional treatment plant such as the District.” (RTC #44). Instead of recognizing the strong role

of municipalities in Massachusetts to support the MassDEP regulatory program, the Region

attempts unconvincingly to assert that the “home rule” governance structure provides a basis to

claim that its Analysis is not in fact an action subject to national rule making requirements.

(RTC #44). In sum, the Region’s dismissal of the important role of state regulations in the RTC

and issuing the Permit without considering the revisions to 314 CMR 12.04(2) typifies the

cobbled nature of its arguments and approach to the co-permittee provisions in the Permit.

E. The Unclear Wording of the Permit Leaves Open the Possibility that the Districtand/or Other Towns Could be Held Responsible for a Town Violation.

The Permit states the Towns “are co-permittee's for the specific activities required in

Sections I.B – Unauthorized Discharges and I.C. – Operation and Maintenance of the Sewer

System, which includes conditions regarding the operation and maintenance of the several

municipal collection systems.” Permit at page 1 of 15. At Part I.C. “Operation and Maintenance

of the Sewer System, the permit says “[t]he permittee and each co-permittee are required to

complete the following activities for the collection system which it owns:…” (emphasis added ).

29

Permit at page 7 of 15. The Permit then lists, in Part I.C., seven (7) specific items: maintenance

staff, preventative maintenance program, I/I, collection system mapping, collection system

operation and maintenance plan, annual reporting, and alternative power source. Within each of

these subsections (1. – 7.), the Permit provides “the permittee and each co-permittee shall . . . .”

(emphasis added) carry out actions as to each item. For example, “[t]he permittee and each co-

permittee shall provide adequate staff . . .; shall maintain an ongoing preventative maintenance

program to prevent overflow and by pass . . .” Permit, at pages 7-9 of 15. In each cited section

of the Permit, the responsibility of the Permittee and Co-Permittee are identical and co-terminus

leaving the District and Towns potentially liable for the actions or inactions of the permittee and

co-permittees identified in the Permit.

Should the Board not strike the co-poermitte provisions, the District’s liability for any

potential violations by Town co-permittees needs to be clarified. Pursuant to the NPDES

regulations, the District, as Permittee, “must comply with all conditions of [the] permit. Any

permit noncompliance constitutes a violation of the [CWA] and is ground for enforcement action

. . ..” 40 CFR 122.41(a). Consequently, and as an example, where the Permit states at Part I. C.

3: “[T]he permittee and each co-permittee shall control [I/I] into the sewer system as necessary

to prevent high flow related to unauthorized discharges from their collection systems and high

flow related violations of the [WWTP’s] effluents limits,” (emphasis added) the District by

operation of the regulations is liable for a violation by a member Town. Permit, at page 8 of 15.

In sum, the Permit as issued leaves the District, as permittee, and the several Towns, as

co-permittees, exposed to liability for violations in satellite collection systems they neither own

or operate. The risk for the permittee and co-permittees from enforcement of these vaguely

worded provisions is not limited to actions by the Region but also includes the possibility of

30

citizens suits to enforce these provisions if the same are not removed or properly clarified to limit

the scope of responsibility for the permittee and co-permittees.

CONCLUSION

As set forth above, the Region has no legal authority to the include the Towns as co-

permittees to the Permit or to regulate municipal satellite collection systems. The Petitioners

respectfully seek review by the EAB of the final NPDES Permit and after such review the

Petitioners request:

1. The opportunity to present oral argument in this proceeding and supplemental

briefing to assist the EAB in addressing the issues raised;

2. A remand to EPA Region 1 with an order to strike all references to and conditions

imposed upon the Towns as “co-permittees” in the Permit and otherwise conform to the EAB’s

findings on the terms and provisions appealed by the Petitioners; and

3. Any such other relief that may be appropriate under the circumstances.

31

Respectfully submitted,

Upper BlackstoneWater Pollution AbatementDistrict and the Towns of Bellingham, Franklin,Millis and MedwayBy its Attorneys

/s/ ____________________________________Robert D. Cox, Jr.Norman E. Bartlett, IIJennifer GarnerBOWDITCH & DEWEY, LLP311 Main StreetP.O. Box 15156Worcester, MA 01615-0156Telephone: 508-926-3409Facsimile: 508-929-3012E-mail: [email protected]: [email protected]: [email protected]


STATEMENT OF COMPLIANCE WITH WORD LIMITATIONS

I hereby certify that this petition for review, including all relevant portions, contains less

14,000 words.

/s/

Robert D. Cox, Jr.


ATTACHMENT ATERMS OR PROVISIONS FROM NPDES

PERMIT NO. MA 0102598 SUBJECT TO PETITIONER’S APPEAL

Part Page of Permit Term or Provision Appealed SubjectMatter

1. Page 1 of 15 Listing the Towns of Franklin,Medway, Millis and Bellingham asCo-Permittees

Co-Permittee

2. Part I.B. Page 7 of 15 Unauthorized Discharges Co-Permittee

3. Part I.C. Pages 7-9 of 15 Operation and Maintenance of theSewer System

Co-Permittee

CERTIFICATE OF SERVICE

I, Robert D. Cox, Jr., hereby certify that on this 27 day of August, 2014, I served a copy

of the foregoing Petition for Review, Statement of Compliance with Word Limitations on the

parties identified below by U.S. first class mail, postage prepaid.

Ken Moraff, Acting DirectorOffice of Ecosystem ProtectionU.S. Environmental Protection Agency5 Post Office SquareSuite 100 (CMA)Boston, MA 02109

David Ferris, DirectorMassachusetts Wastewater Management ProgramMA Department of Environmental Protection1 Winter StreetBoston, MA 02108

Charles River Pollution Control District66 Village StreetMedway, MA 02053

/s/

Robert D. Cox, Jr.

COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

DEPARTMENT OF ENVIRONMENTAL PROTECTION

In the matter of:

Charles River Pollution Control District

) ) ) ) ) ) ) )

NPDES Permit No. MA0102598

NOTICE OF CLAIM FOR ADJUDICATORY HEARING

Pursuant to G.L. c. 30A, § 11, 314 CMR 2.08 and 310 CMR 1.00 the Upper Blackstone

Water Pollution Abatement District and the Towns of Bellingham, Franklin, Millis and Medway,

Massachusetts ("Petitioners") submits this Notice of Claim for Adjudicatory Hearing ("Notice")

requesting the Department of Environmental Protection, vacate, modify or remand certain terms

and provisions of a National Pollutant Discharge Elimination System ("NPDES") Permit No.

MA01 02598, issued to the Charles River Pollution Control District, ("District"), jointly by the

United States Environmental Protection Agency, Region 1 ("EPA") and the Massachusetts

Department of Environmental Protection ("MassDEP") as an identical state Surface Water

Discharge Permit pursuant to the Massachusetts Clean Waters Act, G.L. c. 21, §§ 26-53 and

314 CMR 3.00, dated July 23, 2014 (the "Permit"), in whole or in part, on the grounds that the

Permit was issued without basis in fact and/or law and was arbitrary or capricious, an abuse of

discretion, or otherwise not in accordance with the law. In support of this Notice, the Petitioners

state the following:

{Client Files/ENV/21 0986/0 l31/DEP/03097541.DOCX; 1}

1. Following the District's timely application for reissuance of its NPDES Permit,

EPA and MassDEP jointly issued draft permits pursuant to Section 402(a) of the Clean Water

Act ("CWA"), 33 U.S.C. § 1342, and G.L. c. 21, § 43, respectively.

2. The Petitioners timely submitted written comments on the draft permits to EPA

and MassDEP.

3. On July 23, 2013, EPA and MassDEP co-issued the Permit along with the original

Fact Sheet and responses to comments by Petitioners and others. The Permit, according to its

terms, will become effective in 60 days after signature, except for those provisions stayed by this

appeal pursuant to 314 CMR 2.08(3)( c), until the Commissioner's final decision on the Permit.

4. Petitioners are persons aggrieved by the issuance of the Permit and therefore have

a standing under G.L. c. 30A and 310 CMR 1.00 to bring this request for adjudicatory hearing.

The issues raised by Petitioners in this Notice were raised during the public comment period

and/or are in response to changes made by EPA and MassDEP from the draft permit to the final

permit.

5. Petitioners contend that certain Permit conditions were issued without basis in

fact and/or law and are arbitrary and capricious, an abuse of discretion, or otherwise not in

accordance with law. Specifically, Petitioners challenge the folle>wing Permit conditions:

(1) The inclusion of the Towns of Franklin, Medway, Millis, and Bellingham as co-permittees for specific activities required at Sections I.BUnauthorized Discharges- and I.C- Operation and Maintenance of the Sewer System, which include conditions regarding operation and maintenance of the collection systems (at page 1 of 15 of the Permit).

(2) The applicability of Part I.B.- Unauthorized Discharges- to co-permittees (at page 7 of 15 of the Permit).

2 {Client Files/ENV/210986/0 131/DEP/0309754l.DOCX;l}

(3) The applicability of Part I. C.- Operation and Maintenance of the Sewer System- to "each co-permittee ... for the collection system which it owns" (at pages 7-9 of 15 of the Permit).

6. With this Notice and Petitioners' appeal of the MassDEP's Surface Water Quality

Discharge permit pursuant to 40 CMR 124.19, Petitioners are concurrently submitting a Petition

for Review of the Permit to the Environmental Appeals Board ("EAB"), requesting review of the

identical terms and provisions of the NPDES Permit as made by way of this Notice.

7. The specific terms and provisions of the Permit Petitioners appeal are set forth in

Attachment A which is hereby incorporated by reference as part of this Notice.

8. Because Petitioners seek review before the EAB of Permit conditions identical to

those issued by MassDEP in the NPDES/Surface Water Discharge Permit issued by MassDEP,

Petitioner appends its Petition for Review to the EAB at Attachment B, and hereby incorporates

Attachment Bas part of this Notice. The specific grounds and basis for Petitioners' appeal of the

Permit are set forth in Attachment B.

9. A copy of the Permit is available at EPA's website and here

http:/ /www.epa.gov/region 1/npdes/permits/20 14/finalmaO 1 02598permit.pdf.

For the reasons set forth above, and in the Petitioners' Petition for Review submitted to

the EAB (Attachment B) as well as those which the Petitioners reserve the right to raise as these

proceedings unfold, Petitioners request that the Permit be vacated, modified or remanded in

whole or in part.

3 {Client Files!ENV /210986/0 131/DEP/0309754l.DOCX; 1}

Dated: August 27, 2014

{Client Files/ENV /210986/0 131/DEP/0309754l.DOCX; 1}

UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT AND TOWNS OF BELLINGHAM, FRANKLIN, MILLIS AND MEDWAY

By its~

Robert D. Cox, Jr., Esquire BBO #546486 Norman E. Bartlett, II, Esquire BBO #566761 Jennifer Garner BBO #688754 BOWDITCH & DEWEY, LLP 311 Main Street P.O. Box 15156 Worcester, MA 01615-0156 Tel: (508) 926-3409 Fax: (508) 929-3012 [email protected] [email protected]

4

ATTACHMENT A

ATTACHMENT A TERMS OR PROVISIONS FROM NPDES

PERMIT NO. MA 0102598 SUBJECT TO PETITIONER'S APPEAL

Part Page of Permit Term or Provision Appealed Subject Matter

1. Page 1 of 15 Listing the Towns of Franklin, Co-Permittee Medway, Millis and Bellingham as Co-Permittees

2. Part LB. Page 7 of15 Unauthorized Discharges Co-Permittee

3. Part I. C. Pages 7-9 of 15 Operation and Maintenance of the Co-Permitt~e Sewer System

ATTACHMENT B

BEFORE THE ENVffiONMENTAL APPEALS BOARD UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.

In re:

CHARLES RIVER POLLUTION CONTROL DISTRICT

' NPDES Permit No. MA 0102598

) ) ) ) ) ) ) __________________________ )

NPDESAPPEALNO. 14-

PETITION FOR REVIEW BY UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT AND THE TOWNS OF BELLINGHAM, FRANKLIN,

MILLIS AND MEDWAY


Is/ Robert D. Cox, Jr. Norman E. Bartlett, II Jennifer Gamer BOWDITCH & DEWEY, LLP 311 Main Street P.O. Box 15156 Worcester, MA 01615-0156 Telephone: 508-926-3409 Facsimile: 508-929-3012 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected]


MWRA Advisory Board

Executive Committee Meeting Friday, June 13, 2014 8:30 AM

Advisory Board Conference Room 100 1st Avenue, Building 39-4

Boston, MA 02129



Attendees Tim MacDonald Cambridge Lou Taverna Newton Joseph Favaloro Staff

Rob King Framingham

Bernie Cooper Norwood Matthew Romero Staff

William Hadley Lexington Michael Coffey Quincy Cornelia Potter Staff

Katherine Dunphy Milton Nick Rystrom Revere Travis Ahern Staff

John Carroll MWRA Board of i

John DeAmicis Stoneham Mary Ann McClellan Staff

Andy Pappastergion MWRA Board of Di

DRAFT MINUTES

I. Approval of the May 9, 2014 Minutes of the Executive Committee Chairman Katherine Haynes Dunphy called the meeting to order at 8:37 a.m. A Motion was made TO APPROVE THE MAY 9, 2014 MINUTES OF THE EXECUTIVE COMMITTEE. It was seconded and passed by unanimous vote.

II. FY15 Budget Review Status MWRA Advisory Board Executive Director Joseph Favaloro reported that Advisory Board Chair Katherine Dunphy attended the June 4th Board of Directors hearing on the CIP and CEB budgets where Advisory Board and MWRA staff made presentations. There was a good dialogue and staff believes that the MWRA is in agreement with the Advisory Board’s recommendations. The “pay it forward” concept of utilizing any Debt Service Assistance (DSA) received to offset the following fiscal year’s rate revenue requirement was embraced and will be incorporated into the budget. The $2+ million in reductions identified by Authority staff will offset the use of rate stabilization funds, though the Authority may get to that number in a different manner than Advisory Board staff. This will allow the rate stabilization funds to be preserved for use to lower the increase for FY17, etc. Mr. Favaloro said one of the most important things to come out of this budget process is the huge expansion of the Inflow/Infiltration (I/I) Grant/Loan Program. The doubling of funds for Phases 9 and 10, the 75%/25% grant/loan allocation and the ten-year payback were accepted by MWRA staff and the Board of Directors. Chairman Dunphy said she was sure that the communities would appreciate getting the 75%; the communities are paying for it anyway and the 75% will help get projects approved at town meetings. Director of Communications Matthew Romero noted that the MWRA did accept the Advisory Board’s recommendation that the I/I Program be removed from the capital spending cap calculation since the funding level for these two phases was recently doubled and was not accounted for in the Authority’s proposed budget. Mr. Favaloro added that the extension of the repayment terms to ten years would also have an effect on the Authority’s budget as well. Also, an extra 30% is now part of the grant portion as opposed to the loan portion with the increase from 45% to 75% for grants. Finance and Policy Analyst Travis Ahern has put together a “green sheet” video that outlines the Advisory Board’s Integrated Comments and Recommendations and the budget review process, which will be posted to the Advisory Board’s website.

http://mwraadvisoryboard.com/2014/06/june-2014-green-sheet-ab-recommendations/

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The green videos will be used to provide quarterly financial updates and will have a short “shelf life.” Longer-term green sheet videos, such as the discussion on system expansion and entrance fees, will remain on the Advisory Board’s website to serve as an educational video. A future educational green video will feature the sewer rate methodology. III. Action Item: Status of Cross Harbor Power Cable Mr. Favaloro said if you were to go back over the last three to four budget cycles, staff has “teed up” the potential for a problem with the cross harbor power cable. When the MWRA needed to determine a power source for the Deer Island Wastewater Treatment Plant, it was devised, working with NSTAR/Boston Electric Company (BECo) that the power would come from South Boston down Summer Street, across the Reserved Channel and into the shipping lanes to Deer Island. The Authority paid significantly for that, however, it was not the Authority’s contract; it was NSTAR/BECo’s contract, through a subsidiary called Harbor Electric Energy Company (HEEC). There has been a lot of back and forth over the last 20 years that the Boston Harbor needs to be dredged to make it deeper to allow bigger cruise ships and tankers to come in to Boston. The federal government has recently come on board and provided a significant piece (two-thirds) of the cost to dredge the harbor. In the way of the dredging is the power source for Deer Island. HEEC placed the cable on the ocean floor. They realized there was rock at a certain level under the ocean floor where they placed the cable down, but since 2003, have come to realize that there are sections of that cable that in fact don’t meet the as-built drawings of the Army Corps of Engineers; therefore, HEEC did not meet the permit from the Army Corps. If the dredging is going to happen, HEEC has to protect the entire cable with concrete or some other measure and parts of the cable will have to be lower than their existing positions. Relocating, replacing and protecting the cable could result in $16+ million, which HEEC believes the MWRA should pay. The MWRA rightfully believes that since the cable belongs to HEEC, HEEC should pay. The MWRA has already paid for it once. The Authority is paying for the power and maintenance. The Authority for the past 25 years has been paying at a 10% interest rate; the MWRA has already paid more than $104 million in principal and interest for this cable. The Advisory Board wants its position known from the start. The MWRA and its ratepayers will not be responsible for relocating, replacing or protecting the cable. MWRA staff has been working on this diligently. A member asked if the cable could be lowered while still providing power. Mr. Favaloro said on most sections, the plan is to put a concrete barrier over the cable. Other sections will have to be lowered and then the concrete barrier would be placed over that as well. If the entire cable had to be lowered, the price would be in the $30 to $40 million range. Additionally, the Boston Harbor Cleanup resulted from stopping further pollution of the harbor, but did not remove the existing pollution that settled. Dredging could stir up generation after generation of items on the ocean floor. Eventually it will flush itself, but is “eventually” 100 years or a week and one-half? They plan to dredge this stuff up and then EPA will say that people can’t swim at Carson Beach, what is the MWRA going to do? Staff is seeking approval to bring this issue to the full Advisory Board for its support and then it can be submitted to the MWRA so that Mr. Laskey can add this “bullet to his arsenal.” Chairman Dunphy asked if staff has considered bringing up the issue that the ratepayers would have to pay for this. It would be unfair to have the ratepayers paying for larger cruise ships or natural gas tankers to come into the harbor. These would be economic development projects, but the MWRA shouldn’t be paying for them. Mr. Favaloro stated that this is a viable and important point; however, he would prefer to keep the argument on the “straight and narrow” that this was a cable that has already been paid for by the MWRA.

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A motion was made TO APPROVE THE CROSS HARBOR POWER CABLE RESOLUTION. It was seconded and passed by unanimous vote. IV. Potential Guidelines for Implementing Phase 9 and 10 of the I/I Grant/Loan Program In December, during back-and-forth discussion with communities, one of the issues that was still up in the air was the “trigger mechanism” as it relates to moving from Phase 9 to Phase 10. Every community is different. There are communities that have yet to use their Phase 6, 7 or 8 money; other communities, such as Chelsea, have utilized all of their available funds. Additionally, the Authority brought up some points relating to the substantial increase in funding and the potential flow of monies in regard to the Authority’s budgeting/cash-flow purposes. Working with Authority and Advisory Board staff and Operations Chairman Lou Taverna, a consensus was reached on nine items to make the program work more efficiently. One of the consensus states that there must be a 90-day notice to the MWRA for funding that is greater than $2 million. John Sanchez asked when Phase 9 funding would be available. Mr. Favaloro said Phase 9 funding would be available on July 1, 2014, as long as you have used your funding from the previous phases. John DeAmicis asked if the projects are approved by the MWRA. Mr. Favaloro responded in the affirmative, based on the guidelines and regulations. V. Co-Digestion Update Mr. Favaloro noted that Fred Laskey provides a monthly update to the MWRA Board of Directors regarding co-digestion. The co-digestion process has been placed on hold as staff tries to determine a method to deliver the product to Deer Island since trucking is no longer an option. It has been determined that the piers at Deer Island would be able to accept the product by barge and that no dredging would be required. Former Secretary Sullivan had noted that the state understands that it will have to provide funding to move the pilot program forward. Trying to determine where the MWRA fits into this discussion has led to some interesting exchanges. Mr. Favaloro noted that there are divergent views on the Board of Directors. Brian Swett from the City of Boston is adamant that the pilot program continue and Joel Barrera has stated that he believes the MWRA has a “moral obligation” to continue with the program. The Advisory Board’s members, led by John Carroll, have been interested in understanding the entire program from start to finish and ensuring that ratepayers will not be affected. Staff has invited DEP Commissioner David Cash to attend the June Advisory Board meeting next week, and he has accepted that invitation. He will be able to talk about co-digestion, as well as inter-basin transfer, SWMI regulations and molybdenum. Waste Management personnel have also been invited. Staff has been compiling information on co-digestion and, in fact, watched a “webinar” on the subject and invited MWRA personnel to view the webinar as well. Staff will continue to raise questions to try to gain a better understanding on co-digestion. Michael Coffey asked if EPA would be the enforcement Authority. Mr. Favaloro said this is a state initiative.

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Carol Antonelli asked if, for example, schools don’t comply, who is coming out to look at it? Is it going to be a Board of Health issue? Mr. Favaloro said there are currently no inspectors. Mr. Coffey said that won’t stop them from saying to the communities that they are responsible for enforcement. Ms. Antonelli said she believed the schools would be self-reporting because it has nothing to do with the town. John Carroll stated that he believes a comprehensive study is needed. The information we have now is very fragmented. He said he would like to know the impacts to the entities that have to follow this new rule, impacts to the sewer systems. Right now it is one ton per week; if it goes well, will the number drop to one-half ton per week. Matthew Romero added that in watching the webinar, the gentleman from MA DEP claimed that they did not have any interest in lowering it from one ton per week in the future. Mr. Favaloro said if you take DEP at face value that is a bigger problem, as far as he is concerned, for the MWRA. Why would you ever make a major investment at Deer Island if there is never going to be a market? That is the unknown. Mr. Carroll said he would like to know the percentage of food waste produced by the 1,700 institutions that this is supposed to affect versus the total tonnage of organic waste produced everywhere. Is it 1% of the total organic waste and where is the other 99% going to keep going? Or is it 60%? Mr. Favaloro said staff will continue to ask questions but the answer is going to be that they don’t know. Mr. Carroll said that is the problem; they don’t know. A comprehensive study is needed so that every facet is covered so that we understand the implications of the whole process. Mr. Favaloro said the start date for this change has been delayed once; the original start date was July 1, 2014. Now the date is October 1, 2014. The state might be best served to delay the start statewide once again until the information and impacts have been analyzed. These are the types of questions that should be asked of Dave Cash. Additionally, they are starting this initiative two months before the end of their administration. There is no guarantee that this will be at the top of the new administration’s agenda. The immediate impact to the Authority is the pilot plant. They received $300,000+ from the state and have identified another $200,000 that is still needed for this initiative; in fairness, that is a lot better than the amount it could have been if they had to dredge or build a new pier. The outstanding issues as far as the small pilot plant goes includes how to get the product from the barge to the pier to the holding tank. They will need to do some piping. The real issue will be if the Authority begins to make some real capital investment in order to be able to take the food waste and generate methane. The Authority currently is not capable of receiving the product at the level they would need to and it would necessitate a further capital investment. The Authority is at least five years away from being able to be in the co-digestion business and there may not be a market for the Authority because entities will already have methods in place because they had to begin this process on October 1. The new solution would have to be cheaper. Co-digestion will not likely be cheaper. Staff will continue to gather information. Mr. Carroll said he would put together an outline of a study that he would like MWRA staff to do. Is there going to be a negative impact on our rates for this program? Our job is to find out if the rates will be impacted in any way. Mr. Carroll said if we have higher water and sewer rates because the MWRA is pursuing a “moral obligation” then I would be opposed to it. Mr. Favaloro said the Advisory Board staff has been tickled for being “anti co-digestion;” however, staff hasn’t done anything but pose necessary questions that need to be answered. Mr. Carroll said he doesn’t believe the questions can be answered without a study. Mr. Favaloro said he assumes the questions will lead to the study. Mr. DeAmicis said he is concerned that entities will just put in giant garbage disposals to grind everything up and flush it down the system. Mr. Favaloro agreed, saying it was part of the questions that staff asked. If you are a restaurant on

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the cusp of sending it out or grinding it up, guess which option they will choose. That change could cause a problem in the local systems and downstream. Lou Taverna said that is a big concern because it increases a problem that we already have. Cornelia Potter added that the co-digestion material by-passes the primary and secondary processes and goes right into the digesters. If it is sent down a drain through a disposal, it goes through the whole process. Mr. Romero noted that he had called communities to see what they would be doing if entities started to put this product into the wastewater stream and a lot of the communities said they were going to wait to see what the MWRA does. The MWRA says it is a local issue, not an MWRA issue. A lot of cities and towns don’t realize that they need to change their local sewer regulations if they want to avoid that. It hits their systems first, not the MWRA’s system. Mr. Favaloro stated that he wanted to provide a quick update on system expansion. There is still no news on Tri-Town (Braintree, Holbrook and Randolph). However, Ashland and Hopkinton have formally begun the process to go through all of the steps that are necessary to come into the MWRA system. North Reading is planning to start their process this year as well. VI. August Field Trip Mr. Favaloro said for this field trip, guests will be allowed to enter and walk down into the covered storage tank at the Spot Pond construction site. The tour will continue on to the Gillis Pump Station and then to Cambridge to see a “green” CSO project at the Fresh Pond Stormwater Outfall and Detention Basin. There are also plans to “kick off” the new phases of the I/I program, with community officials being invited as well. VII. Approval of the Advisory Board Agenda for June 19, 2014 A motion was made TO APPROVE THE ADVISORY BOARD AGENDA FOR THE JUNE 19, 2014 MEETING. It was seconded and passed by unanimous vote. VIII. Adjournment A motion was made TO ADJOURN THE MEETING AT 9:50 A.M. It was seconded and passed by unanimous vote.

Respectfully submitted,

William Hadley, Secretary

Documents

TABLE OF CONTENTS Title PDF Page No.mwraadvisoryboard.com/wp-content/uploads/2014/09/2014-09-12-Exec... · Pursuant to G.L. c. 30A, § 11, 314 CMR 2.08 and 310 CMR 1.00 the Upper