YAY 2 8 3)10 


Cl!Jtt( ENVIRONMOOAL 

INITIALS 

(Slip Opinion) 

NOTICE: This opinion is subject to fonnal revision before 

publication in the Environmental AdministrativeDecisions (EAD.). 

Readers are requested to notifY the Environmental Appeals Board, 

U.S. Environmental Protection Agency, Washington, D.C. 20460, of 

any typographical or other fonnal errors, in order that corrections 

may be made before publication. 

BEFORE THE ENVIRONMENTAL APPEALS BOARD 


UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 


WASHINGTON, D.C. 


) 

) 

In re: ) 

) 

Upper Blackstone Water Pollution ) NPDES Appeal Nos.08-11 

Abatement District ) to 08-18 & 09-06 

) 

NPDES Permit No. MA 0 I 02369 ) 

) 

[Decided May 28, 20 I 0] 

ORDER DENYING REVIEWIN PART AND 


REMANDING IN PART 


Before Environmental Appeals Judges Charles J. Sheehan, 

Kathie A. Stein, and Anna L. Wolgast. 
 IN RE UPPER BLACKSTONE WATER POLLUTION 

 ABATEMENT DISTRICT

NPDES Appeal Nos. 08-11 to 08-18 & 09-06

ORDER DENYING REVIEW IN PART AND 

REMANDING IN PART

Decided May 28, 2010

Syllabus

On August 22, 2008, U.S. Environmental Protection Agency Region 1 (the

“Region”) issued to Upper Blackstone Water Pollution Abatement District (the

“District”) a National Pollution Discharge Elimination System (“NPDES”) permit,

number MA0102369 (the “Permit”). The District owns and operates a wastewater

treatment plant located in Millbury, Massachusetts (the “Treatment Plant”), which

collects and treats sewage and wastewater from the surrounding area, including from

collection systems owned by nearby municipalities. The Permit would authorize, subject

to the Permit’s conditions, pollutant discharges from the Treatment Plant into the

Blackstone River. The District, several municipalities and a governmental entity that

discharge to the District’s Treatment Plant, several environmental groups, and the

Massachusetts Department of Environmental Protection (“MassDEP”) filed petitions

requesting that the Environmental Appeals Board (“Board”) review the Permit’s

conditions.

The parties request EAB review of the Permit’s conditions on five principle

grounds. First, the District and the municipalities challenge the Permit’s provisions

making certain municipalities co-permittees on the Permit. Second, Conservation Law

Foundation (“CLF”), the District, and MassDEP challenge the Permit’s limits for total

nitrogen, phosphorous, fecal coliform, and aluminum. Third, the District challenges the

sampling and monitoring requirements for a variety of pollutants. Fourth, the District

argues that the Permit should include compliance schedules establishing when the District

must comply with the new more stringent permit limits. And, fifth, the District argues

that the Region did not provide adequate opportunity for public comment by

environmental justice communities.

HELD: the Board denies review in all respects except one; the Board remands the

Permit’s provisions adding, as co-permittees subject to the Permit’s conditions, certain

municipalities served by the District’s Treatment Plant.

1) The Permit makes certain entities “co-permittees,” thereby extending standard Permit

conditions governing operation, maintenance, and reporting to these sewage collection
UPPER BLACKSTONE WATER POLLUTION 

ABATEMENT DISTRICT

2

systems not owned or operated by the District, but instead owned and operated by the

municipalities listed in the Permit. There is no similar provision in the prior 2001 permit

under which the District is currently authorized to discharge treated wastewater into the

Blackstone River. The Board concludes that, here, 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 has not sufficientlyarticulated 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. 

2) The Board concludes the Region did not clearly err or abuse its discretion in

establishing the Permit’s total nitrogen limit. The Board concludes that the record is

sufficient to support the Region’s determination pursuant to 40 C.F.R. § 122.44(d)(1)(i)

that nitrogen is present in the District’s effluent at a concentration that causes, has the

reasonable potential to cause, or contributes to a violation of Rhode Island’s narrative

water quality criteria. The Board also concludes that, contrary to the contention of one

petitioner, that petitioner has not shown that a limit more stringent that 5.0 mg/l is

necessary to ensure compliance with applicable water quality standards. And, the Board

concludes, contrary to other petitioners’ contentions, scientific uncertainty in the record

regarding fate and transport of the District’s total nitrogen discharges does not establish

that the Region clearly erred or abused its discretion in setting the Permit’s limit at 5.0

mg/l pursuant to 40 C.F.R. § 122.44(d)(1)(vi). It also was not unreasonable for the

Region to conclude that consistency with Rhode Island’s interpretation of its narrative

requirement warranted expressing the Permit’s limit as a concentration rather than as a

mass limit.

3) The Board concludes that the petitioners have not shown clear error or an abuse of

discretion in theRegion’s decision setting the Permit’s total phosphorus limit. The Board

rejects the District’s contention that the Region failed to connect the phosphorus

discharges with specific impairments in designated uses. The Region identified the

designated uses that are impaired as well as the criteria that are violated and explained

why it concluded there is a reasonable potential that the District’s discharges cause the

observed violations. The Board also concludes that the specific arguments challenging

the Permit’s limit as not sufficiently stringent were not preserved for appeal. The Board

further concludes that the Region properly applied 40 C.F.R. § 122.44(d)(1)(vi)(B) when

the Region referred to EPA criteria in setting the total phosphorus limit and that the

record supports the Region’s decision setting the Permit’s total phosphorus limit. In

particular, the District has not pointed to any EPA or Massachusetts numeric criteria, nor

any other relevant record evidence, that would support a total phosphorus limit of 0.75

mg/l as sufficient to control cultural eutrophication immediately and further downstream

fromtheDistrict’s discharge point. Further, the Region appropriately relied on the severe

phosphorus-driven cultural eutrophication violating water quality criteria and impairing

the Blackstone River’s designated uses in setting a stringent permit limit at this time

without waiting for further data. 
UPPER BLACKSTONE WATER POLLUTION 

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3

4) The Board concludes that the District has not shown clear error or an abuse of

discretion in the Region’s decision to set the Permit’s limit for fecal coliform for the

period of November 1 through March 31 at a monthly geometric mean of 571 cfu/100 ml

and a daily maximum of 1429 cfu/100 ml. The Board concludes that there is no

ambiguity in Rhode Island’s law establishing a year-round designated use for the

Blackstone and Seekonk Rivers for both primary and secondary contact recreational

activities, and that there is no ambiguity, or seasonal exception, in Rhode Island’s

numeric criterion for fecal coliform for these waters. The District also has not established

clear error or an abuse of discretion in the Region’s determination that the District’s fecal

coliform discharges have the reasonable potential to violate Rhode Island’s numeric

criterion for fecal coliform. 

5) The Board concludes that the District has not shown clear error or an abuse of

discretion in the Region’s decision to set the Permit’s aluminum limit at 87 :g/l. The

District’s arguments based on information introduced for the first time on appeal must be

rejected. The Region was required to make its decision on the administrative record

established pursuant to 40 C.F.R. § 124.18, and whether the Region committed clear error

is measured by the record that was before the Region at the time it made its decision.

Because the record evidence the District cites does not refute the Region’s response to

comments, the Board must reject the District’s contention that the Region clearly erred

in concluding that it must apply EPA’s nationally recommended criterion of 87 ug/l for

aluminum in the Blackstone River.

6) The Board denies review of the District’s challenges to various metals limits and

sampling and monitoring requirements. The Board also concludes that the Region

appropriately rejected the District’s request for compliance schedules to be included as

terms of the Permit, and the Region gave appropriate consideration to environmental

justice issues.

Before Environmental Appeals Judges Charles J. Sheehan,

Kathie A. Stein, and Anna L. Wolgast.

Opinion of the Board by Judge Wolgast:

On August 22, 2008, U.S. Environmental Protection Agency

Region 1 (the “Region”) issued to Upper Blackstone Water Pollution

Abatement District (the “District”) a National Pollution Discharge

Elimination System (“NPDES”) permit, number MA0102369 (the

“Permit”). The District owns and operates a wastewater treatment plant

located in Millbury, Massachusetts (the “Treatment Plant”), which

collects and treats sewage and wastewater from the surrounding area

including from collection systems owned by nearby municipalities. The
UPPER BLACKSTONE WATER POLLUTION 

ABATEMENT DISTRICT

4

 In response to Trout Unlimited’s petition, the Region issued on April 15, 1

2009, a modification establishing the Permit’s conditions for total aluminum discharge

and monitoring. The District filed a second petition requesting that the Board review the

modified total aluminum discharge and monitoring conditions. By Order dated August

7, 2009, the Board consolidated the original petitions and the District’s second petition

for administrative purposes.

Permit would authorize, subject to the Permit’s conditions, pollutant

discharges from the Treatment Plant into the Blackstone River.

The following organizations filed petitions requesting that the

Environmental Appeals Board (“Board”) review the Permit’s conditions:

1) the District; 2) the Town of Holden, Massachusetts (“Holden”); 3) the

Town of Millbury, Massachusetts (“Millbury”); 4) the City of Worcester,

Massachusetts (“Worcester”); 5) the Northern RI Chapter 737 Trout

Unlimited (“Trout Unlimited”); 6) the Conservation Law Foundation 1

(“CLF”); 7) the Massachusetts Department of Environmental Protection

(“MassDEP”); and 8) Cherry Valley Sewer District (“Cherry Valley”).

The Rhode Island Department of Environmental Management

(“RIDEM”) also requested, and the Board granted, permission to

participate in this proceeding as Amicus Curiae.

For the reasons discussed below, the Board remands the Permit’s

provisions that add, as co-permittees subject to the Permit’s conditions,

certain municipalities served by the District’s Treatment Plant, and the

Board denies review of all other Permit conditions.

I. BACKGROUND

The Clean Water Act (“CWA”) generally prohibits anyone from

discharging pollutants into navigable waters, CWA § 301(a), 33 U.S.C.

§ 1311(a), and it authorizes EPA to issue NPDES permits allowing

certain pollutant discharges subject to the limits and conditions required

by the CWA. CWA § 402, 33 U.S.C. § 1342. Pertinent to this case,

section 301 requires pollutant discharge limits necessary to implement
UPPER BLACKSTONE WATER POLLUTION 

ABATEMENT DISTRICT

5

 Water quality standards, adopted by states and approved by EPA under the 2

CWA, are designed to protect the public health or welfare, enhance water quality, and

advance the purposes of the CWA. CWA § 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A).

They consist of these three components: (1) one or more “designated uses” for each water

body or water body segment; (2) water quality “criteria”; and (3) an antidegradation

policy. See id.; 40 C.F.R. §§ 131.10 to 131.12. Water quality criteria – the component

at issue in the present case – can consist of numerical concentration levels and/or

narrative statements specifying the amounts of various pollutants that may be present in

a water body without impairing the “designated uses” of that water body. See Office of

Water, U.S. EPA , NPDES Permit Writer’s Manual § 6.1.1, at 89 (1996).

 These water quality-based limits apply when technology-based limits required 3

by section 301(b)(1)(A) are insufficient to meet the applicable state water quality

standards. EPA may not issue an NPDES permit if the permit does not meet CWA

section 301’s effluent limitations requirements. In re City of Fort Worth, 6 E.A.D. 392,

394 (EAB 1996). 

 CWA section 401(a)(2) requires EPA to notify any state that may be affected 4

by the proposed discharges and to “condition such license or permit in such manner as

may be necessary to insure compliance with applicable water quality requirements.”

CWA § 401(a)(2), 33 U.S.C. § 1341(a)(2).

applicable state water quality standards. CWA § 301 (b)(1)(C), 2

33 U.S.C. § 1311(b)(1)(C). Specifically, section 301(b)(1)(A) requires

technology-based limitations and section 301(b)(1)(C) requires any more

stringent limitations “including those necessary to meet water quality

standards.” The CWA prohibits EPA from issuing a permit that does 3

not “insure” compliance with the water quality standards of both the

state where the discharge originates and all affected states. See CWA

§ 401(a)(1), (2), 33 U.S.C. § 1341(a)(1), (2).

4

EPA regulations implementing these statutory requirements

specifically prohibit the Region from issuing a permit “[w]hen the

imposition of conditions cannot ensure compliance with the applicable

water quality requirements of all affected States.” 40 C.F.R. § 122.4(d).

EPA’s implementing regulations also require that the Permit must

include conditions “necessary” to “[a]chieve water quality standards

established under section 303 of the CWA, including State narrative
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 Section 122.44(d)(1) provides in relevant part as follows: 5

[E]ach NPDES permit shall include conditions meeting the

following requirements when applicable.

* * * *

(d) Water quality standards and State requirements: any

requirements in addition to or more stringent than promulgated

effluent limitations guidelines or standards under sections 301, 304,

306, 307, 318 and 405 of CWA necessary to:

(1) Achieve water quality standards established under

section 303 of the CWA, including State narrative criteria for water

quality.

40 C.F.R. § 122.44.

 The term “publicly owned treatment works” is defined by the regulations at 6

40 C.F.R. § 403.3(o) as a municipality- or state-owned “treatment works” as defined

under CWA section 212. The regulatory definition specifically includes the “POTW

Treatment Plant” and the sewers, pipes and other conveyances that convey wastewater

to the POTW Treatment Plant. The term “POTW Treatment Plant” is defined as the

portion of the POTW designed to provide treatment of municipal sewage and industrial

waste. 40 C.F.R. § 403.3(p). One of the central disputes in this case concerns the scope

of the collection systemthat is properly included within the Permit’s requirements. These

issues are discussed in Part II.C below.

criteria for water quality.” 40 C.F.R. §122.44(d)(1). Further,

5

“[l]imitations must control all pollutants or pollutant parameters(either

conventional, nonconventional, or toxic pollutants) which the [Region]

determines are or may be discharged at a level which will cause, have the

reasonable potential to cause, or contribute to an excursion above any

State water quality standard, including State narrative criteria for water

quality.” Id. § 122.44(d)(1)(i).

These provisions apply to, among others, discharges from

publicly owned treatment works (“POTW”), such as the District’s

Treatment Plant and the associated collection system at issue in the

present case. The District’s Treatment Plant discharges into the 6

Blackstone River, a navigable interstate water flowing from its origin in
UPPER BLACKSTONE WATER POLLUTION 

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7

Massachusetts south into Rhode Island where it discharges into the

Seekonk River, a marine water. Fact Sheet for the Draft Permit at 1, 5

(“Fact Sheet”). The Seekonk discharges into the Providence River,

which flows into Narragansett Bay. Id. The Treatment Plant’s effluent

contains a variety of pollutants, including fecal coliform, ammonianitrogen, phosphorus, cadmium, copper, and zinc. Id. at 2 & Attach. A.

The District is currently authorized to discharge pollutants to the

Blackstone River pursuant to an NPDES permit EPA issued on

September 30, 1999, and modified on December 19, 2001. Because the

District timely filed an application for permit renewal, the District’s

previous, but now expired, 2001 NPDES permit remains in effect

authorizing the District’s discharges until the present permitting

proceeding is resolved. 40 C.F.R. § 122.6. 

This case arises out of the District’s application for renewal of

its NPDES permit. After receiving the District’s application for permit

renewal, the Region prepared a draft permit and, on March 23, 2007, the

Region opened public comment on the draft permit. During the public

comment period, which closed on May 25, 2007, the Region received

comments from the District and from numerous other organizations and

individuals. In August, 2008, the Region issued its responses to the

public comments and its final Permit decision, and the parties

subsequently filed their petitions requesting the Board review the

Permit’s conditions.

When initially issued in August 2008, the Permit did not include

a limit for total aluminum. In its response brief, the Region stated that

it “plans to issue a draft permit modification to establish an aluminum

effluent limit,” Respondent Region 1’s Memorandum in Response to

Petitions for Review at 133 (“Region’s Resp. Br.”), and on April 15,

2009, the Region issued a Permit modification setting the Permit’s

aluminum limit. On May 20, 2009, the District filed a petition seeking

review of the aluminum limit. See Petition for Review of Revised Permit

Conditions and Motion of the Permittee, Upper Blackstone Water

Pollution Abatement District, to Consolidate this Petition with Others

Related to this Permit, NPDES Appeal No. 08-11 (May 20, 2009) (herein
UPPER BLACKSTONE WATER POLLUTION 

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 If any party believes there is an error in the transcript that would have affected 7

the Board’s decision as rendered, that party should file, within 10 days after this decision

is issued, a Motion for Reconsideration pointing out the alleged error and how it relates

to the Board’s decision.

“Dist. Al Pet.”). By order dated August 6, 2009, the Board consolidated

the District’s petition for review of the Permit modification with the

District’s petition for review of other conditions of the Permit. See n.1.

The Board held oral argument in this matter on October 29,

2009. Subsequently, the District filed a motion seeking to correct

alleged errors in the transcript of the District’s argument at oral

argument, and the Region and CLF filed responses stating that if any part

of the transcript is corrected, all parts should be corrected. The Board

denies the request to correct the oral argument transcript. The alleged

transcription errors the District identifies appear to be insubstantial and

are not material to the Board’s decision as set forth below. The Board's

decision is based on the administrative record at the time the Region

issued its decision. 40 C.F.R. § 124.18. Oral argument provides the

Board an opportunity to better understand the parties’ arguments as set

forth in the petitions and response briefs; oral argument does not

supplement the record established under section 124.18. Where the

Board quotes the oral argument transcript in this decision, the Board has

compared the transcript to the audio recording and determined that the

transcript accurately represents the arguments made. Because the Board

concludes the transcription errors are insubstantial and not material to

the Board’s decision set forth below, it is not necessary for the Board to

determine whether the numerous deletions and additions the District

proposes are in fact accurate.7

II. DISCUSSION

The parties request EAB review of the Permit’s conditions on

five principle grounds. First, the District, Holden, and Worcester,

supported by Millbury and Cherry Valley as amicus curiae, challenge the

Permit’s provisions making Holden, Millbury, Worcester, and Cherry
UPPER BLACKSTONE WATER POLLUTION 

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9

Valley and other municipalities co-permittees on the Permit. Second,

CLF, the District, and MassDEP challenge the Permit’s limits for total

nitrogen, phosphorous, fecal coliform, and aluminum. Third, the District

challenges the sampling and monitoring requirements for a variety of

pollutants. Fourth, the District challenges the Region’s determination

that it is not authorized to include schedules establishing when the

District must comply with the new more stringent permit limits. And,

fifth, the District challenges the Region’s response to the District’s

public comments regarding the effect of the Permit on environmental

justice communities.

A. Millbury and Cherry Valley Standing

The initial question before the Board is whether Millbury and

Cherry Valley have standing to contest the Permit’s terms. The

regulations that govern permit appeals require petitioners to have

standing to appeal, which means that the petitioner must have

participated in the public review process either by filing written

comments or by participating in a public hearing. 40 C.F.R. § 124.19(a).

If a petitioner did not participate in the public review process, it may

only appeal issues pertaining to changes from the draft to the final

permit. Id.; see also In re American Soda, LLP, 9 E.A.D. 280, 288 (EAB

2000); In re Envotech, L.P., 6 E.A.D. 260, 266 (EAB 1996) (quoting In

re Beckman Prod. Servs., 5 E.A.D. 10, 16 (EAB 1994)). In the present

case, Millbury and Cherry Valley do not indicate that they participated

in the public review process by submitting written comments on the draft

permit or by presenting testimony at the public hearing, and their

arguments are not focused on changes between the draft and final

permits. As such, Millbury and Cherry Valley have failed to

demonstrate standing to file an appeal of the Permit under 40 C.F.R.

§§ 124.13 and 124.19(a). 40 C.F.R. §§ 124.13, .19(a); see, e.g.,

American Soda, 9 E.A.D. at 288 (dismissing petitions on standing

grounds); In re Knauf Fiber Glass, GmbH, 8 E.A.D. 121,173 (EAB

1999) (discussing standing). Nevertheless, the Board generally has

allowed the permittee to participate in appellate proceedings by filing a

response to petitions pending before the Board and, thus, in the present
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 In other words, the regulations require that persons who seek review of a 8

permit decision “must raise all reasonably ascertainable issues and submit all reasonably

available arguments supporting their position by the close of the public comment period”

on the draft permit. 40 C.F.R. § 124.13 (emphases added).

context where Millbury and Cherry Valley are listed as co-permittees

under the Permit’s terms, they will be recognized as amici curiae and

their filings considered amicus briefs.

B. Standard of Review

The burden of persuading the Board that it should review a

permit rests with the petitioner, who must demonstrate that any issues

and arguments it raises on appeal have been preserved for Board review,

unless the issues or arguments were not reasonably ascertainable before

the close of public comment. 40 C.F.R. §§ 124.13, .19(a); see In re City

of Moscow, 10 E.A.D. 135, 141 (EAB 2001); In re City of Phoenix,

9 E.A.D. 515, 524 (EAB 2000), appeal dismissed per stip., No. 01-70263

(9th Cir. Mar. 21, 2002).

8

The Board has frequently emphasized that, to preserve an issue

for review, comments made during the comment period must be

sufficiently specific. In re New Eng. Plating Co., 9 E.A.D. 726, 732

(EAB 2001); In re Steel Dynamics, Inc., 9 E.A.D. 165, 230-31

(EAB 2000); In re Maui Elec. Co., 8 E.A.D. 1, 9 (EAB 1998). On this

basis, the Board often has denied review of issues raised on appeal that

the commenter did not raise with the requisite specificity during the

public comment period. See, e.g., New Eng. Plating, 9 E.A.D. at 732;

Maui, 8 E.A.D. at 9-12; In re Fla. Pulp & Paper Ass’n, 6 E.A.D. 49, 54-

55 (EAB 1995); In re Pollution Control Indus. of Ind., Inc., 4 E.A.D.

162, 166-69 (EAB 1992).

Assuming that the issues have been preserved, the petitioner

must state its objections to the permit and explain why the permit

issuer’s previous response to those objections is clearly erroneous, an

abuse of discretion, or otherwise warrants review. 40 C.F.R.
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§ 124.19(a); see In re Town of Ashland Wastewater Treatment Facility,

9 E.A.D. 661, 668 (EAB 2001); In re Haw. Elec. Light Co., 8 E.A.D. 66,

71-72 (EAB 1998). In reviewing NPDES permits, the Board is guided

by the concept articulated in the preamble to the part 124 permitting

regulations, which states that the Board’s power of review “should be

only sparingly exercised” and that “most permit conditions should be

finally determined at the [r]egional level.” 45 Fed. Reg. 33,290, 33,412

(May 19, 1980); accord City of Moscow, 10 E.A.D. at 141. A petitioner

may not simply reiterate comments made during the public comment

period, but must substantively confront the permit issuer’s subsequent

explanations. In re Peabody W. Coal Co., 12 E.A.D. 22, 33 (EAB 2005);

accord, In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 666

(EAB 2006). 

Finally, a petitioner seeking review of issues that are technical

in nature bears a heavy burden because the Board generally gives

substantial deference to the permit issuer on questions requiring

scientific or technical judgment. Town of Ashland, 9 E.A.D. at 667; In

re NE Hub Partners, L.P., 7 E.A.D. 561, 567-68 (EAB 1998), review

denied sub nom. Penn Fuel Gas, Inc. v. U.S. EPA, 185 F.3d 862 (3d

Cir. 1999).

C. Challenges to the Permit’s Co-Permittee Provisions

The District, Holden, and Worcester, supported by Millbury and

Cherry Valley participating as amici curiae, seek review of the Permit’s

condition that makes certain entities “co-permittees.” The Permit states

as follows:

The City of Worcester, the Towns of Millbury, Auburn,

Holden, West Boylston and Rutland, and the Cherry

Valley Sewer District discharge wastewater into the

[District’s] facility and are co-permittees for Part D and

Part E and are responsible for implementation of the

operation and maintenance and reporting requirements

of Parts D and E related to their respective system. The
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The Region’s response to comments explains that the Permit’s co-permittee 9

provision departs from prior practice – the Region stated:

As [the District] is well aware, historically, the Region has issued an

NPDES permit only to the legal entity owning and operating the

wastewater treatment plant, which is only a portion of the ‘treatment

works’ serving the communities for whom the [District] provides

wastewater treatment. The Region has now chosen to provide a

more comprehensive approach to permitting these facilities to ensure

proper operation and compliance of the entire treatment works, not

a portion of it.

Region’s Response to Comments at 84-85 (“RTC”). Although the Region acknowledged

that the inclusion in this Permit of co-permittees owning collection systems is a departure

from the Region’s prior practice, the Region hasinformed the Board that it has taken this

approach in other recently issued permits. See Letter from Karen McGuire, U.S. EPA

Region 1, to Eurika Durr, Clerk of the Board, U.S. EPA Environmental Appeals Board

(Nov. 10, 2009). 

Towns of Sutton, Shrewsbury, Oxford and Paxton are

also authorized to discharge wastewater into the

[District’s] facility. Only municipalities specifically

listed above are authorized to discharge wastewater into

the [District’s] facility.

Permit at 1. This provision extends standard Permit conditions

governing operation, maintenance, and reporting to sewage collection

systems not owned or operated by the District, but instead owned and

operated by the listed municipalities and Cherry Valley. There is no

similar provision in the prior 2001 permit under which the District is

currently authorized to discharge treated wastewater into the Blackstone

River. The Region states, “historically, the Region has issued an NPDES

permit only to the legal entity owning and operating the wastewater

treatment plant.” The Region added the co-permittees to the Permit to 9
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“Infiltration is groundwater that enters the collection system through physical 10

defects such as cracked pipes, or deteriorated joints. Inflow is extraneous flow entering

the collection system through point sources such as roof leaders, yard and area drains,

sump pumps, manhole covers, tide gates, and cross connections from storm water

systems.” Fact Sheet at 19. “Significant I/I in a collection system uses conveyance and

treatment capacity that will then not be available for sanitary flow, thereby reducing the

capacity and the efficiency of the treatment works and increasing the possibility of

sanitary sewer system overflows (SSO) from the collection system.” Id.

 The Region described the requirements imposed on the co-permittees as

11

“reporting of unauthorized discharges including SSOs [sanitary sewer system overflows],

maintaining an adequate maintenance staff, performing preventative maintenance,

controlling inflow and infiltration to separate sewer collection systems (combined sewers

are not subject to I/I requirements) to the extent necessary to prevent SSOs and I/I related

effluent violations at the wastewater treatment plant, and maintaining alternate power

where necessary.” Fact Sheet at 19. The Region explained that these operation and

maintenance requirements are authorized by 40 C.F.R. § 122.41(e), (d), and that the

Permit’s specific inflow and infiltration conditions are required by Massachusetts’ state

certification issued under section 401 of the CWA. Id. at 18-19

control inflow and infiltration (“I/I”) in sewage collection systems 10

transporting wastewater to the District’s Treatment Plant. 

11

The parties and amici challenge this new co-permittee provision

from several vectors. The parties and amici argue that the Region does

not have the authority to add the co-permittees because the co-permittees

did not sign the permit application. See, e.g., Dist. Supp. Pet. at 63. The

parties and amici also argue that the Region acted arbitrarily in

determining which satellite systems to include as co-permittees and

which to exclude altogether (e.g., Massachusetts Department of

Conservation and Recreation) or simply list, but not add as co-permittees

(e.g., Sutton, Shrewsbury, Oxford, and Paxton). Dist. Supp. Pet. at 64.

They argue further that the District is improperly made liable for

reporting activities associated with satellite collection systems it does not

own or control and over which its enabling legislation prohibits it from

exercising control. Dist. Supp. Pet. at 61-62. The District additionally

argues in its reply brief that the co-permittees do not “discharge [] a

pollutant” within the meaning of the statute and regulations and that the

collection systems that connect to the District’s system and Treatment
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Plant “are exempt indirect discharges under 40 C.F.R. § 122.3.” Reply

of the Permittee, Upper Blackstone Water Pollution Abatement District,

to Region 1's Memorandum in Opposition to Petitions for Review, the

Amicus Curiae Brief of Rhode Island Department of Environmental

Management and Other Petitionsfor Review (“Dist. Reply Br.”) at 9-10,

16.

At bottom, the central issue regarding the co-permittee

requirement is: did the Region satisfactorily articulate a rule-of-decision,

or interpretation, for expanding the Permit to encompass separately

owned and operated collection systems that discharge into the District’s

Treatment Plant and identify a sufficient statutory and regulatory basis

for that expansion?

The Region contends that it did articulate a satisfactory

rationale, pointing to its interpretation of the definition of “publicly

owned treatment works,” which includes “sewers, pipes, and other

conveyances.” 40 C.F.R. §§ 122.2, 403.1; see also CWA § 212(2)(A),

33 U.S.C. § 1292 (definition of “treatment works” includes “sewage

collection systems”). In its response to comments, the Region stated

that this definition provides authority to “to regulate the entire POTW

(including the treatment plant and collection systems).” RTC at 86.

Following this logic, any collection system that ultimately discharges to

the Treatment Plant is subject to NPDES permitting. The Region

attempted to narrow this universe of potential NPDES permittees at oral

argument.

At oral argument, in response to questions asking how far up the

collection systems the Region’s legal reasoning would allow the Region

to impose co-permittee requirements, the Region stated that the Region

“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.” Tr.

at 71. When the Board sought further clarification and asked whether a

public entity could be made a co-permittee, the Region responded:
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The Region stated in the Fact Sheet that “[b]ecause Worcester, Millbury, 12

Auburn, Holden, West Boylston, Rutland, and Cherry Valley Sewer District each own

and operate collection systems that discharge to [the District’s] treatment plant, these

entities have been included as co-permittees” for the specific permit conditions in Part

I.D and I.E of the Permit. Fact Sheet at 19.

The Region’s failure to articulate in the Fact Sheet a more complete rationale

for its decision does not, on its own, necessitate a remand even though “the fact sheet

shall briefly set forth the principal facts and the significant factual, legal, methodological

and policy questions considered in preparing the draft permit.” 40 C.F.R. § 124.8(a). As

explained in Attleboro, “the permitting authority is not required to provide

comprehensive detailsin a fact sheet” because “[t]he rules governing permit proceedings

(continued...)

No. If its part of – we’re regulating here the same way

we would if this were just the City of Worcester and it

owned the treatment works. So we’re taking the

authority just as far as we would in that case – what fits

within the publicly-owned treatment works in that case.

So, we’re not trying to go to users whether they be

publicly owned. * * * We are handling this the same

way we do for the many permits we have where one

municipality owns the whole thing.” 

Tr. 80.

The trouble with the Region’s analogy, or reference, to permits

issued to an entity that “owns the whole thing” is that neither this answer

nor its briefsidentifies criteria demarcating what is, and what is not, part

of “the whole thing” in this case where the Region has, without apparent

explanation, abandoned its historical practice of limiting the permit “only

to the legal entity owning and operating the wastewater treatment plant.”

In addition, the undefined terms “collection system” and “user” do not

add an analytical basis for categorizing as co-permitees certain, but not

all, entities that discharge solely to a treatment plant and employ

equipment that fits within the definition of “publicly owned treatment

works.” Both users and collection systems ultimately discharge to the

District’s Treatment Plant, and because users seemingly employ 12
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(...continued) 12

specifically allow the permitting authority to add materials to the administrative record

during its review of comments on the draft permit to address new points or new

materials” and the “appeals process affords petitioners the opportunity to question” the

new material. In re City of Attleboro, MA, Wastewater Treatment Plant, NPDES App.

Nos. 08-08 & -09, slip op. at 85-86 (EAB Sept. 15, 2009), 14 E.A.D. __. The preamble

to the rulemaking proposal for section 124.8 stated that, although the fact sheet must

“explain[] the basis for the draft permit in some detail,” nevertheless “[b]ecause there are

practical limits to EPA’s ability to explain each of the permits it issues in comprehensive

detail, the discussion in the fact sheet * * * should be proportional to the importance of

the issues involved and the degree of controversy surrounding them.” Consolidated

Permit Regulations, 44 Fed. Reg. 34,244, 34,264 (proposed June 14, 1979) (emphasis

added). In the present case, although a more detailed discussion in the Fact Sheet was

not per se error, these subsequent appeals illustrate that the Region’s brief statement on

the issue quoted above was not proportional to the importance of the legal and factual

issues and degree of controversy of the Region’s decision to depart from its prior practice

limiting the NPDES permit’s scope to collection systemowned or operated by the permit

applicant. A more thorough explanation would have been helpful to public participation

and the appellate process.

collection systems within their structures in the form of branch

drainpipes that collect and transport wastewater from fixtures to the main

drainpipe, there is no self-evident distinction between the “collection

system” and the “user.” Indeed, what the Region left unanswered at oral

argument is precisely the question that the Board asked, namely under

the Region’s reasoning, how far up collection systems does the

regulatory jurisdiction to impose NPDES requirements on co-permittee

reach.

Even assuming that, in permits involving a single-entity POTW,

the Region applies a reasonably precise distinction, other than property

boundaries, identifying where the collection system ends and a user

begins, that distinction is not expressed in the administrative record of

this proceeding. See, e.g., In re Deseret Elec. Power Coop., PSD Appeal

No. 07-03,slip op. at 53-60 (EAB Nov. 13, 2008) 14 E.A.D. __ (denying

appeal where rationale was not articulated in the administrative record);

see also Dominion, 12 E.A.D. at 523-24(denied petitioner’s argument

based on documents not in the administrative record); In re Kendall New
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See, e.g., Alabama Power Co. v. Costle, 636 F.2d 323, 400 (D.C. Cir.1979).

13

Here, however, the Region has not provided record evidence supporting its conclusion

that the excluded municipalities provide materially smaller contributions. There is no

evidence regarding the relative size of these municipalities’ contributions, no criteria for

a de minimis determination, nor any evidence that such contributions are de minimis.

Century Dev., 11 E.A.D. 40, 55 (EAB 2003) (rejecting petitioner’s

argument based on evidence submitted in a different permit proceeding).

The Region’s following explanation in its response to comments,

likewise, is inadequate: “wastewater from the treatment works (including

the collection system) is discharged through the outfalls at [the

District’s] treatment plant. Therefore, the treatment works (including the

collection system) is subject to permitting.” RTC at 86. This

explanation also does not identify where the “collection system” ends

and a “user” begins, or in any other way identify the extent to which

collection systems not owned by the entity owning or operating the

treatment works are subject to NPDES permitting.

The Region also did not articulate in its response to comments

a legal rationale for distinguishing between the particular municipalities

named as co-permittees and other municipalities that were not so named.

Instead, the Region offered a pragmatic explanation for distinguishing

between the two groups. The Region explained that it obtained the list

it used to identify the co-permitteesfromthe District’s answers to certain

questions on the permit application and, when additional municipalities

were identified during the public comment period, the Region stated that

“[a]s the contributions from these [additional] municipal systems are

relatively smaller than the other satellite systems, EPA will not include

these four [additional] municipalities as ‘co-permittees’ in this permit.”

RTC at 88. While in some circumstances EPA has authority to exclude

de minimis impacts from permitting requirements, such a pragmatic 13

explanation does not satisfy the Region’s obligation to provide a legal

rationale identifying the extent to which the NPDES requirements apply

to collection systems that do not discharge directly to waters of the

United States, but instead discharge to another entity’s collection system
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 Likewise, although the Region’s following statements at oral argument and 14

in its response to comments may provide a practical reason for extending the Permit to

include co-permittees, these statements do not identify a limiting legal principle for the

geographic reach of jurisdiction proposed here in which some seemingly similarly

situated entities were made co-permitees and others were not. At oral argument the

Region stated that “no one is contesting that it makes sense to do this work in light of

O&M [operation and maintenance requirements]. The need for O&M is to reduce the

occurrence of the tank and sewer overflows * * *.” Tr. at 72. In its response to

comments, the Region explained that various regulatory provisions authorize EPA “to

require appropriate operation and maintenance of collection systems” (citing 40 C.F.R.

§ 122.41(d), (e)) and “[s]ince the District does not own or operate some of the collection

systems that discharge to the treatment works, it is appropriate to apply these conditions

to the owners/operators as co-permittees.” RTC at 86.

and ultimately to the treatment plant, and that are owned by entities other

than the owner of the treatment plant.

14

Upon consideration, the Permit’s co-permittee provision is

remanded. The Region has not sufficiently articulated in the record of

this proceeding a rule-of-decision, or interpretation, identifying the

statutory and regulatory basis 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.

In remanding the Permit’s co-permittee provision, the Board

does not pass judgment on the Region’s explanation, in its response to

comments, for rejecting the District’s contention that the District’s status

as owner and operator of the treatment plant defines the scope of the

NPDES authority, limiting that authority to the treatment plant and

collection system owned by the District. Specifically, pointing to CWA

section 212(2)(A), which defines “treatment works” as including

“sewage collection systems,” and to the similar regulatory definition of

the term “publicly owned treatment works” found at 40 C.F.R. §§ 122.2

and 403.1, the Region explained that the treatment plant “is only a

portion of the ‘treatment works.’” RTC at 84. The Region stated further

that it “has now chosen to provide a more comprehensive approach to

permitting these facilities to ensure proper operation and compliance of
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 The Region explained in its response to comments that “EPA is authorized 15

to regulate the entire POTW (including the treatment plant and collection system). That

[the District] and its member communities have decided to maintain separate ownership

of the treatment plant and collection system does not require the EPA to solicit separate

signatures from each of the satellite systems.” RTC at 86.

the entire treatment works, not a portion of it.” Id. at 84-85. This

explanation for the Region’s conclusion that it has legal authority to

extend the Permit’s requirements beyond what the District owns and

operates must be considered, as an integrated whole, together with the

Region’s full legal analysis, which it has not yet provided, identifying the

extent to which the NPDES requirements apply to collection systems.

The Board also reserves judgment at this time on both (1) the

Region’s reasons for rejecting concerns expressed in the public

comments regarding whether the Region’s decision to add the named copermittees is consistent with the application signature requirements set

forth in the regulations and (2) the District’s additional argument raised

15

in its reply brief that the co-permittees do not “discharge [] a pollutant”

within the meaning of the statute and regulations and that the collection

systems that connect to the District’s system and Treatment Plant “are

exempt indirect discharges under 40 C.F.R. § 122.3,” Dist. Reply Br.

at 9-10, 16. The question of consistency with the regulatory scheme is

not ripe until the Board has before it the Region’s full explanation

identifying the extent to which the NPDES requirements apply to

collection systems that do not discharge directly to waters of the United

States, but instead discharge to a collection system leading to the

Treatment Plant, and that are owned by entities other than the District.

Accordingly, the Permit’s co-permittee provision is remanded

for the Region to reconsider the extent to which the NPDES

requirements apply to collection systems that discharge to the treatment

plant and are owned by entities other than the District, and to fully

articulate its decision in the administrative record. On remand, the

Region may re-issue the Permit with, or without, the co-permittee
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 There is no indication in the record of this proceeding whether the Region’s 16

historical practice of issuing NPDES permits only to the treatment plant owner was

announced as a policy or interpretation.

 Among other things, the Region’s analysis should address the references to 17

“municipality” in the regulatory definition of POTW, 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.” 40 C.F.R. § 403.3(o).

The Region’s analysis should also explain how its rationale is consistent with the permit

application signature requirements, 40 C.F.R. §§ 122.21(j)(10), 122.22, the exclusion

from the permitting requirements for indirect dischargers, id. § 122.3(c), and the

definitions of “discharge,” “discharge of a pollutant,” and “indirect discharger,” id.

§ 122.2, including the regulatory history of those provisions (e.g., National Pollutant

Discharge Elimination System, 44 Fed. Reg. 32,854, 32901 (June 7, 1979) (defining

“indirect discharger” as “a non-municipal, non-domestic discharger ** *”); Consolidated

Permit Regulations, 45 Fed. Reg. 33,290, 33,421 (May 19, 1980) (defining “indirect

discharger” as “a nondomestic discharger * * *”).

provision as the Region determines is appropriate. However, in the 16

event the Region determines to re-issue the Permit with the co-permittee

provision, the Region’s analysis should address the issues discussed

above and it should provide sufficient detail for the Board to evaluate

whether the Region’s rationale is consistent with the statute and the

regulatory scheme.17

D. Challenges to the Permit’s Limits for Total Nitrogen

The District, CLF, and MassDEP seek review of several Permit

conditions the Region established in order to ensure compliance with

Rhode Island and Massachusetts water quality criteria, one of three

components of state water quality standards. The parties seek review of

the Region’s decision establishing the Permit’s limits for total nitrogen,

phosphorous, fecal coliform, and aluminum. These challenges generally

question whether the Permit complies with the statutory requirements for

permit limits under CWA section 301 and 402 and the statutory

prohibition of CWA section 401 on issuing permits that do not “insure”

compliance with state water quality standards. This subsection addresses

the challenges to the Permit’s total nitrogen limit. Challenges to the
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limits applicable to phosphorus, fecal coliform, and aluminum will be

addressed in the following Parts II.E, .F, and .G, respectively.

The Region found that the Treatment Plant’s discharges of total

nitrogen would cause or contribute to violations of Rhode Island’s water

quality standards, and the Region established in the final Permit a

numeric limit for total nitrogen discharges of 5.0 mg/l monthly average

for the months of May through October and a narrative limit specifying

treatment optimization for November through April. Fact Sheet at 14.

The District, CLF, and MassDEP seek Board review of this Permit

condition on several grounds. CLF argues that the limit is not

sufficiently stringent. CLF Pet. at 7-16. The District and MassDEP

argue that the Region did not have an adequate scientific basis for the

limit it chose, and the District argues further that the Region should

delay its decision until there is greater scientific certainty. Dist. Supp.

Pet. at 7-32; Massachusetts Department of Environmental Protection

Supplemental Petition for Review (“MassDEP Supp. Pet.”) at 12-16.

MassDEP also argues that the limit is improperly stated as a

concentration of the pollutant in the discharge and, instead, should be

stated as a limit on the total mass of the pollutant that may be discharged.

MassDEP Supp. Pet. at 7-12.

CLF bases its call for a more stringent total nitrogen limit on a

statement in a key scientific report prepared by RIDEM, Evaluation of

Nitrogen Targets and WWTF Load Reductions for the Providence and

Seekonk Rivers, Office of Water Resources (Dec. 2004) (the “2004

RIDEM Report”), which at one point states that requiring total nitrogen

controls at the limit of technology, 3.0 mg/l, will not achieve water

quality compliance in portions of the Providence and Seekonk Rivers.

As CLF presents it, where the record contains such a “definitive

statement,” CLF Reply at 2-3, there is no justification for the Region to

set the Permit’s limit at a less stringent 5.0 mg/l, thereby allowing the

District to discharge at a concentration 1.67 times higher than the limit

of technology. 
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 The District’s 2001 permit contains a limit for ammonia-nitrogen. Fact Sheet 18

at 10-11.

 The Region states that the District’s Treatment Plant would be able to achieve 19

limits in the range of 8 mg/l to 10 mg/l, after completion of upgrades that were in process

during the time the Region was making its decision. RTC at 30.

 The District also objects to the narrative treatment optimization requirement 20

applicable during the months of November to April (i.e. “reduce the discharge of total

nitrogen * * * to the maximum extent possible.”). Dist. Supp. Pet. at 52-53 (quoting

Permit n. 9). The District argues that the cold-weather optimization requirement should

refer to the District’s “best judgment” to ensure “compliance with effluent limits,” rather

than requiring reductions “to the maximum extent possible.” Id. The District has not

shown clear error or an abuse of discretion. The phrase “maximum extent possible” is

sufficiently certain in its meaning. A reference to the District’s “best judgment” would

be less certain in meaning. Accordingly, review of this issue is denied.

In contrast, the District argues that the Region’s decision is

scientifically unsound and finalization of any numeric limit on total

nitrogen discharges should be delayed. Dist. Supp. Pet. at 19-27. The

effect of the District’s request for delay would be to allow the District to

continue discharging under its current permit with no limit on total

nitrogen discharges. RTC at 24. The District does not even argue for

18

a less stringent limit, such as a limit of 8.0 mg/l to 10 mg/l, which 19

would allow total nitrogen to be discharged at concentrations 2.67 to

3.33 times higher than achievable at the limit of technology. Rather, as

the District presents it, the Region does not have the authority to impose

any limit whatsoever until there is a “fully developed model of the Bay,”

that is a mathematical model or “a TMDL that can replicate the physical

and chemical conditions observed in the Narragansett Bay.” Dist. Supp.

Pet. at 24-25. The District argues that the Region must make this

“demonstration before imposing numeric limits.” Dist. Reply at 4.

20

As explained in detail below, the Board concludes the Region

made no clear error or abuse of discretion in the Region’s analysis or

decision. Briefly, CLF overstates the 2004 RIDEM Report’s certainty

regarding the need for controls at the limit of technology, and CLF

ignores the Report’s ultimate recommendation that the District’s limit be
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 The Board rejects the District’s argument that the Region improperly 21

communicated with RIDEM when the Region and RIDEM communicated regarding the

Fiscal Year 2006-2007 Performance Partnership Agreement. Dist. Supp. Pet. at 7-9. The

District contends that the communication between the Region and RIDEM violates 5

U.S.C. § 557(d)(1), which prohibits ex parte communication in matters governed by

section 557(a). The District’s argument, however, must fail. The Region’s permitting

decision is not governed by section 557, which applies only to proceedings required to

be conducted in accordance with APA section 556. 5 U.S.C. § 557(a). NPDES

permitting proceedings are not required to be conducted in accordance with APA section

556. In re USGEN New England, Inc., Brayton Point Station, 11 E.A.D. 525, 529-30

(EAB 2004) (denying motion for formal evidentiary hearing under APA section 556),

aff’d sub nom Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir.

2006); Amendments to Streamline the National Pollutant Discharge Elimination System

Program Regulations: Round Two, 65 Fed. Reg. 30,886 (May 15, 2000).

set at 5.0 mg/l. Conversely, the uncertainty the District and MassDEP

point to fails to show that the Region clearly erred or abused its

discretion in setting the Permit’s limit at 5.0 mg/l.

21

In short, there is more than sufficient evidence in the record to

establish that the Narragansett Bay and the Providence and Seekonk

Rivers are severely impaired by nitrogen-driven eutrophication. The

record also is sufficient to establish that the District is a significant

discharger of nitrogen to the Blackstone River, which discharges into the

most heavily impaired part of the upper Narragansett Bay, the

Providence and Seekonk Rivers. Thus, as explained more fully below,

there is no clear error in the Region’s conclusion that the District’s

discharges of total nitrogen cause, have a reasonable potential to cause,

or contribute to violations of the Rhode Island water quality standards.

The Board also concludes that the limit the Region selected of 5.0 mg/l

is reasonable in light of the relevant available scientific analysis and data

in the administrative record, and there is no clear error or abuse of

discretion in the Region’s determination to state the Permit’s total

nitrogen limit as a limit on the concentration of total nitrogen allowed in

the District’s effluent. Accordingly, as explained below, the Board

denies review of the Permit’s total nitrogen limit.
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 Section 122.44(d)(1) provides in relevant part as follows: 22

[E]ach NPDES permit shall include conditions meeting the

following requirements when applicable.

* * * *

(d) Water quality standards and State requirements: any

requirements in addition to or more stringent than promulgated

effluent limitations guidelines or standards under sections 301, 304,

306, 307, 318 and 405 of CWA necessary to:

(1) Achieve water quality standards established under

section 303 of the CWA, including State narrative criteria for water

quality.

40 C.F.R. § 122.44(d)(1).

 The standards governing the “reasonable potential” analysis are set forth in 23

40 C.F.R. § 122.44(d)(1)(ii), which provides as follows:

(continued...)

1. The Region’s “Reasonable Potential” Determination is Supported

by the Record

Regulatory section 122.44(d)(1) requires that the Permit must

include conditions “necessary” to “[a]chieve water quality standards

established under section 303 of the CWA, including State narrative

criteria for water quality.” 40 C.F.R. §122.44(d)(1). Subparagraph 22

(d)(1)(i) governs which pollutants must be made subject to a water

quality-based effluent limit: “Limitations must control all pollutants or

pollutant parameters (either conventional, nonconventional, or toxic

pollutants) which the [Region] determines are or may be discharged at

a level which will cause, have the reasonable potential to cause, or

contribute to an excursion above any State water quality standard,

including State narrative criteria for water quality.” Id.

§ 122.44(d)(1)(i). Factors to be taken into account in the “reasonable

potential” analysis are described more specifically by subparagraph

(d)(1)(ii). If a pollutant discharge is found to cause, have the 23
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(...continued) 23

When determining whether a discharge causes, has the reasonable

potential to cause, or contributes to an in-stream excursion above a

narrative or numeric criteria within a State water quality standard,

the permitting authority shall use procedures which account for

existing controls on point and nonpoint sources of pollution, the

variability of the pollutant or pollutant parameter in the effluent, the

sensitivity of the species to toxicity testing (when evaluating whole

effluent toxicity), and where appropriate, the dilution of the effluent

in the receiving water.

Id.

reasonable potential to cause, or contribute to exceedances of numeric

or narrative state water quality criteria, then as discussed more fully in

the next part, the permit writer must establish the limit as provided in

subparagraphs (iii) through (vii). 40 C.F.R. § 122.44(d)(1)(iii)-(vii).

The Region described the two-step process governing the

establishment of the Permit’s water quality-based effluent limits as

follows: “An NPDES permit must limit any pollutant or pollutant

parameter (conventional, non-conventional, toxic and whole effluent

toxicity) that is or may be discharged at a level that causes or has a

‘reasonable potential’ to cause or contribute to an excursion above any

water quality criterion. Where EPA makes such a determination, it then

proceeds to establish an appropriate effluent limit.” RTC at 76. The

Region’s “reasonable potential” analysis will be discussed in this Part

II.D.1, and the Region’s analysis supporting the specific numerical limit

will be discussed in the following Part II.D.2.

The Region established the Permit’s total nitrogen numeric

effluent limit to achieve compliance with Rhode Island’s narrative water

quality criteria. Fact Sheet at 11-12. Specifically, the Region

determined pursuant to 40 C.F.R. § 122.44(d)(1)(i) that nitrogen is

present in the District’s effluent at a concentration that causes, has the

reasonable potential to cause, or contributes to violation of Rhode

Island’s narrative criteria. Id. at 12-14. The Region confirmed this

determination in its response to comments. See, e.g., RTC at 76.
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 The District has not differentiated its argument to recognize the different 24

legal rules, as described more fully in the text, governing the Region’s “reasonable

potential” analysis under 40 C.F.R. § 122.44(d)(1)(i) and (ii) from the Region’s

determination of the 5.0 mg/l Permit limit under 40 C.F.R. § 122.44(d)(1)(vi).

 Under section 303(d) of the Clean Water Act, states are required to identify 25

those water segments where technology-based controls are insufficient to implement the

applicable water quality standards, and which are therefore “water quality limited” or

impaired. See CWA § 303(d)(1)(A), 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. § 130.2(j).

Once a segment is identified as water quality limited, the state is further required to

establish total maximum daily loads (“TMDLs”). CWA § 303(d)(1)(C), 33 U.S.C.

§ 1313(d)(1)(C); 40 C.F.R. § 130.7. A TMDL is a measure of the total amount of a

pollutant from point sources, nonpoint sources, and natural background, which a water

quality limited segment can tolerate without violating the applicable water quality

standards. See 40 C.F.R. § 130.2(i). The portions of a receiving water’s loading capacity

that are allocated to existing or future point sources of pollution are known as waste load

allocations (“WLAs”). Id. § 130.2(h). On the other hand, the portions attributed to

existing or future nonpoint sources of pollution or to natural background sources are

known as load allocations (“LAs”). Id. § 130.2(g). Thus, a TMDL is, in simple terms,

the sum of WLAs and LAs.

The District argues that the Region clearly erred in making its

“reasonable potential” determination. Dist. Supp. Pet. at 27. The

District contends that “[b]ecause a proper assessment of total nitrogen

has not yet been completed, Region 1 has not met its obligation to

demonstrate the need for these numeric limitations.” Id. The District

presents this argument as part of a broader, undifferentiated argument24

generally contending that the Region’s decision does not rest on an

adequate scientific foundation, specifically that a total nitrogen limit

cannot be imposed without science sufficient for an analysis equivalent

to a “total maximum daily load” or “waste load allocation” for total 25

nitrogen in the waters impacted by the District’s discharges. Id. at 19-27.

Notably, the District does not challenge or contest significant

parts of the Region’s “reasonable potential” analysis. Specifically, the

District has not identified any error in the Region’s description of the

water quality conditions of the Providence and Seekonk Rivers and

Narragansett Bay. The Region explained that the Narragansett Bay and

the Providence and Seekonk Rivers have suffered severe cultural
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eutrophication for many years that have resulted in periodic low

dissolved oxygen levels and fish kills and other impacts on fish and

wildlife. Id. at 11-12. The Region stated as follows:

It is clear that eutrophication in the Seekonk and

Providence Rivers and Narragansett Bay has reached a

level where it is adversely affecting the composition of

fish and wildlife; adversely affecting the physical,

chemical, or biological integrity of the habitat,

interfering with the propagation of fish and wildlife;

adversely altering the activities of fish and wildlife; and

causing dissolved oxygen to drop well below 5.0 mg/l.

The effects of eutrophication, including algae blooms

and fish kills, are also interfering with the designated

uses of the water. Eutrophication has, therefore,

reached a point where it is causing violation of water

quality standards. 

Fact Sheet at 12. The Region reinforced this determination in its

response to comments: “The upper sections of Narragansett Bay

(including the Providence and Seekonk rivers), are no longer able to

support a healthy aquatic community. At times, dissolved oxygen levels

decline dramatically and significant fish kills are becoming regular

occurrences. Only a small fraction of the historic eelgrass habitat

remains.” RTC at 80. The Region further found that “the Blackstone

River discharges into the relatively poorly flushed areas at the head of

the Upper Bay.” Id.

The District also has not challenged the Region’s conclusion that

these eutrophic and associated conditions existing in the Narragansett

Bay and the Providence and Seekonk Rivers violate Rhode Island’s

narrative water quality criteria. Fact Sheet at 12; RTC at 79-80. The

Rhode Island water quality criteria state that “[t]otal phosphorus, nitrates

and ammonia may be assigned site-specific permit limits * * *,” and that

nutrients shall not be allowed “in such concentration that would impair

any usages specifically assigned to said Class, or cause undesirable or
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 Rhode Island’s regulations state as follows: 26

Water Quality Criteria - The following physical, chemical and

biological criteria are parameters of minimum water quality

necessary to support the surface water use classifications of rule 8.B.

and shall be applicable to all waters of the State.

(1). General Criteria - The following minimum criteria are applicable

to all waters of the State, unless criteria specified for individual

classes are more stringent:

(a). At a minimum, all waters shall be free of pollutants in

concentrations or combinations or from anthropogenic activities

subject to these regulations that:

i. Adversely affect the composition of fish and wildlife;

ii. Adversely affect the physical, chemical, or biological integrity of

the habitat;

iii. Interfere with the propagation of fish and wildlife;

iv. Adversely alter the life cycle functions, uses, processes and

activities of fish and wildlife; or

v. Adversely affect human health.

(b). Aesthetics - all waters shall be free from pollutants in

concentrations or combinations that:

(continued...)

nuisance aquatic species associated with cultural eutrophication.” Fact

Sheet at 12 (quoting 12-190-001 R.I. Code R. Tbl.2 § 8.D.(3)10). Rhode

Island water quality criteria also state that waters shall be free of

pollutants in concentrations or combinations or from anthropogenic

activities that “[a]dversely affect the composition of fish and wildlife,”

“[a]dversely affect the physical, chemical, or biological integrity of the

habitat,” “[i]nterfere with the propagation of fish and wildlife,” or

“[a]dversely alter the life cycle functions, uses, processes and activities

of fish and wildlife.” Fact Sheet at 11 (quoting 12-190-001 R.I. Code R.

§ 8.D.(1)). The Region correctly supported its decision by noting that 26
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(...continued) 26

i. Settle to form deposits that are unsightly, putrescent, or odorous to

such a degree as to create a nuisance, or interfere with the existing or

designated uses;

ii. Float as debris, oil, grease, scum or other floating material

attributable to wastes in amounts to such a degree as to create a

nuisance or interfere with the existing or designated uses;

iii. Produce odor or taste or change the color or physical, chemical

or biological conditions to such a degree as to create a nuisance or

interfere with the existing or designated uses; or,

v. Result in the dominance of species of fish and wildlife to such a

degree as to create a nuisance or interfere with the existing or

designated uses.

12-190-001 R.I. Code R. § 8.D.(1).

 The District specifically acknowledges that “[t]he relationship between 27

productivity, as measured by chlorophyll-a, and concentrations of nutrients is well

established by the MERL data.” Dist. Supp. Pet. at 21.

Rhode Island has listed the Seekonk River and Providence River on its

section 303(d) list of waters impaired for nutrients, low dissolved

oxygen, and excess algal growth/chlorophyll(a). Id. at 7. Rhode Island

has also listed the Providence River as impaired for pathogens. Id. 

The District also has not challenged the Region’s determination

that nitrogen is a significant cause and contributing factor in creating the

eutrophic and associated conditions that violate water quality standards

observed in the Narragansett Bay and the Providence and Seekonk

Rivers. The Region explained that excessive loadings of nitrogen in

marine water causes or contributes to eutrophication and water-qualitydamaging plant growth. RTC at 79-80, 92 106; Fact Sheet at 8-12.

Indeed, the District specifically states that it does not dispute the “basic

relationship between excessive nutrients and environmental impairment.”

Dist. Supp. Pet. at 22.27
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 The acronym UBWPAD stands for Upper Blackstone Water Pollution 28

Abatement District, the petitioner in this case.

The District also has not identified any error in the Region’s

conclusion that “[t]he predominant sources of the nitrogen loading in the

Providence and Seekonk Rivers are municipal wastewater treatment

facilities in Rhode Island and Massachusetts.” Fact Sheet at 12. The

Region explained as follows:

Numerous scientific studies conducted over the last 15

– 20 years have documented that excessive discharges

of nitrogen are causing the impairment and wastewater

discharges are the dominant source of nitrogen. See also

Nutrient and Bacteria Pollution Panel, Initial Report,

Governor’s Narragansett Bay and Watershed Planning

Commission, March 2, 2004 at page 3 (summarizing

studies).

RTC at 80.

The District also has not identified any record evidence that

would contradict the Region’s determination that the District’s effluent

“is the dominant source of nitrogen loadings to the Blackstone River.”

Fact Sheet at 12-13. The Region explained that

[T]he UBWPAD – with a permitted design flow of 56

MGD – is one of the largest sources of nitrogen to

Narragansett Bay. The loadings data utilized in DEM’s

2004 study indicate that UBWPAD represented

approximately 64% of the nitrogen load discharged to

the Blackstone River from municipal wastewater

treatment facilities for the period of time considered in

the study.

RTC at 80. Although the District states that it “disagrees with the 28

Region’s characterization of the District’s relative contribution of
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 “Reasonable potential” requires some degree of certainty greater than a mere

29

possibility, but it leaves to the permit writer’s scientific and technical judgment how

(continued...)

loadings,” Dist. Supp. Pet. at 13 (quoting RTC at 53), the District has not

identified any evidence in the record showing error in the Region’s

conclusion that the District is the dominant nitrogen source.

Instead, the District attempts to carry its entire burden of

showing clear error in the District’s “reasonable potential” analysis by

pointing to uncertainty regarding the precise relative contribution of the

District’s nitrogen discharges to the overall eutrophication problem in

Narragansett Bay and the Providence and Seekonk Rivers. See Dist.

Supp. Pet. at 27. That is simply not sufficient where the applicable legal

standard looks not only to whether the District’s discharges “cause,” but

also whether those discharges either “contribute to” or have a

“reasonable potential” to cause, a violation of Rhode Island’s water

quality standards.

The requirement to impose a permit limit is not only premised

on a finding that the pollutant discharges “are” at a level that “causes”

violation of the applicable water quality standards, but the requirement

is also triggered by a finding that the facility’s pollutant discharges

“may” be at a level that “contributes” to or has the “reasonable potential”

to cause a violation. 40 C.F.R. § 122.44(d)(1)(i). The juxtaposed

contrasts between “are” and “may,” and between “cause” and both

“contribute” and “reasonable potential,” indicate that the Region is not

limited, as the District contends, to acting only where there is certainty

of an existing causal link between a specific discharge and a particular

violation of water quality standards. Instead, the regulation requires

water quality-based effluent limits even when there is some degree of

uncertainty regarding both the precise pollutant discharge levels and the

potential causal effects of those discharges, so long as the record is

sufficient to establish that there is a “reasonable potential” for that

discharge to cause or contribute to a violation of water quality

standards. Agency guidance and the Board’s decisions have also stated 29
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(...continued) 29

much certainty is necessary.

that the reasonable potential analysis must be based on the “worst-case”

effluent conditions. In re Washington Aqueduct Water Supply Syst., 11

E.A.D. 565, 584 (EAB 2004); accord Am. Iron & Steel Inst. v. EPA, 115

F.3d 979, 1001 (D.C. Cir. 1997) (discussing EPA’s policy that the

reasonable potential analysis be based on the worst case scenario). The

regulations, thus, require a precautionary approach when determining

whether the permit must contain a water quality-based effluent limit for

a particular pollutant.

The District’s references to uncertainty or lack of precision in

the Region’s determination of the District’s contribution to the problem

relative to the contributions of non-point sources of nitrogen and other

municipal waste treatment plants are simply insufficient to overcome the

substantial weight of scientific evidence in the record that, even if the

precise relative contribution is uncertain, the District’s discharges are a

significant contributor of nitrogen to the Blackstone River, which

discharges to the Seekonk and Providence Rivers, thereby contributing

to those rivers’ nitrogen-driven eutrophication problem that frequently

violates Rhode Island’s water quality criteria. The Region specifically

found as follows:

Numerous scientific studies conducted over the last 15

– 20 years have documented that excessive discharges

of nitrogen are causing the impairment and wastewater

discharges are the dominant source of nitrogen. See also

Nutrient and Bacteria Pollution Panel, Initial Report,

Governor’s Narragansett Bay and Watershed Planning

Commission, March 2, 2004 at page 3 (summarizing

studies). The UBWPAD – with a permitted design flow

of 56 MGD – is one of the largest sources of nitrogen to

Narragansett Bay. The loadings data utilized in DEM’s

2004 study indicate that UBWPAD represented

approximately 64% of the nitrogen load discharged to
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the Blackstone River from municipal wastewater

treatment facilities for the period of time considered in

the study. In addition, the Blackstone River discharges

into the relatively poorly flushed areas at the head of the

Upper Bay, which has exacerbated the impact of

nutrients. Based on review of these various reports and

studies of impairments in the Upper Bay and sources

and loadings of nutrients, EPA concluded that

discharges of nitrogen from the UBWPAD facility are

causing or have the reasonable potential to cause or

contribute to violations of Rhode Island’s water quality

standards.

RTC at 80. The District does not cite any data or scientific analysis that

would contradict the data and analysis the Region relied upon.

The District is simply wrong when it asserts both that the Region

did not identify an effects based relationship between nitrogen and

eutrophication and that the Region did not “link the relationship to any

impairment of designated uses in the receiving water or downstream.”

Dist. Reply at 3. The Region provided an extensive explanation of the

impact of eutrophication on “the composition of fish and wildlife,”

interference with “propagation of fish and wildlife,” fish kills, and

impaired growth of eel grass. Fact Sheet at 12; RTC at 21, 27, 29-30, 80;

accord RTC at 114 (“The nitrogen reductions required through this

permit will have substantial environmental benefits, including significant

reductions in algal growth and associated dissolved oxygen impairments

that have severely impaired the marine fish community and recreational

use of Narragansett Bay.”).

A complete assessment of, and development of a mathematical

model that precisely predicts the fate and transport of nitrogen

throughout the Narragansett Bay system is not necessary for the Region

to have had a sufficient scientific basis for its finding that the District’s

nitrogen discharges contribute to, or have the reasonable potential to

cause, the undisputed water quality impairments observed in the Seekonk
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 The District also argues that, while the Region acknowledges that other 30

sources are contributing to nutrient loadings, the Region does not account for those other

sources. Dist. Supp. Pet. at 13, 24-25. The District states further, “the Region makes no

attempt to determine how various nutrient loadings from various sources would affect the

causal factors, and how the response of these causal factors impairs designated uses.”

Dist. Reply at 3. The District argues that “these other sources * * * prevent the system

from meeting standards.” Dist. Supp. Pet. at 13. As explained in Attleboro, “section

301(b)(1)(C) requires each point source to achieve effluent limitations necessary to meet

water quality standards and does not make allowance for failure of other sources to

comply.” Attleboro, slip op. at 43 (citing In re Blue Plains Sewage Treatment Plant, 1

E.A.D. 531, 540 (Adm’r 1979), 14 E.A.B. __. Accordingly, the District’s arguments

regarding discharge levels of other sources or point sources do not show clear error in the

Region’s decision and do not provide justification for delay in imposing more stringent

limits on the District. Id.

 To assist permit issuers in their development of water quality-based effluent 31

limits, EPA published technical guidance documents that propose methods for

classifying, sampling, analyzing, and calculating relevant parameters. See, e.g., Office of

Water, U.S. EPA, EPA 822-B-01-015, Ambient Water Quality Criteria

Recommendations: Rivers and Streams in Nutrient Ecoregion 8 (Dec. 2001); Office of

Water & Office of Science & Technology, U.S. EPA, EPA-822-B-00-002, Nutrient

Criteria Technical Guidance Manual: Rivers and Streams (July 2000); Office of Water

(continued...)

River, and further downstream in the ProvidenceRiver and Narragansett

Bay. Accordingly, the District has failed to sustain its burden to show 30

clear error or abuse of discretion in the Region’s determination that the

total nitrogen in the District’s discharges causes, contributes to, or has

the reasonable potential to cause violations of Rhode Island’s narrative

water quality criteria.

2. The Total Nitrogen Discharge Limit of 5.0 mg/l Is Supported by the

Record 

When a pollutant discharge is found to cause, have the

reasonable potential to cause, or contribute to exceedances of numeric

or narrative state water quality criteria, as the Region found for the

District’s total nitrogen discharges in the present case, then the permit

writer must include in the permit a water quality-based effluent limit

determined as provided in 40 C.F.R. § 122.44(d)(1)(iii)-(vii).31
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(...continued) 31

Regulations & Standards, U.S. EPA, EPA 440/5-86-001, Quality Criteria for Water:

1986 (May 1, 1986) (the “Gold Book”); Memorandum from Geoffrey Grubbs, Director,

Office of Science & Technology, U.S. EPA, to Water Directors, EPA Regions 1-10, et

al. (Nov. 14, 2001); Office of Water, U.S. EPA, EPA-833-B-96-003, U.S. EPA NPDES

Permit Writers' Manual, chs. 6, 10.2, at 87-114, 176-178 (Dec. 1996).

 Section 122.44(d)(1)(vi) provides: 32

Where a State has not established a water quality criterion for a

specific chemical pollutant that is present in an effluent at a

concentration that causes, has the reasonable potential to cause, or

contributes to an excursion above a narrative criterion within an

applicable State water quality standard, the permitting authority must

establish effluent limits using one or more of the following options:

(A) Establish effluent limits using a calculated numeric

water quality criterion for the pollutant which the permitting

authority demonstrates will attain and maintain applicable narrative

water quality criteria and will fully protect the designated use. Such

a criterion may be derived using a proposed State criterion, or an

explicit State policy or regulation interpreting its narrative water

quality criterion, supplemented with other relevant information

which may include: EPA’s Water Quality Standards Handbook,

October 1983, risk assessment data, exposure data, information

about the pollutant from the Food and Drug Administration, and

current EPA criteria documents; or 

(B) Establish effluent limits on a case-by-case basis, using

EPA’s water quality criteria, published under section 304(a) of the

CWA, supplemented where necessary by other relevant information;

or

(C) Establish effluent limitations on an indicator parameter

for the pollutant of concern * * *.

(continued...)

Subparagraph (vi) provides three alternative methods for establishing the

specific permit limit in circumstances where the state’s water quality

standard is narrative, not numeric, as is the case here. Id.

§ 122.44(d)(1)(vi)(A)-(C). 

32
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(...continued) 32

40 C.F.R. § 122.44(d)(1)(vi)(A)-(C).

 The 2004 RIDEM Report both provides a review of the available science and 33

it provides RIDEM’s interpretation of what total nitrogen limits and reductions are

required to achieve compliance with Rhode Island water quality standards. That report

generally recommends a total nitrogen limit of 5.0 mg/l for the larger treatment plants

discharging into the portions of the Narragansett Bay and river system that are most

impaired. Brief of Amicus Curiae Rhode Island Department of Environmental

Management (“RIDEM Br.”) at 5.

In the present case, the Region determined the Permit’s total

nitrogen effluent limit of 5.0 mg/l applying paragraphs (A) and (B) using

a wide range of relevant information, including EPA technical guidance,

state laws and policies applicable to the narrative water quality criterion,

and site-specific studies. RTC at 28, 94. The Region paid particular

attention to the 2004 RIDEM Report. Fact Sheet at 12. This Report

33

explains that, because the Rhode Island Department of Environmental

Management was not able to develop a computer-based numerical model

for the Providence and Seekonk Rivers, the Report focused instead on

the results of, and adjustments to, a physical model experiment

conducted in the early 1980s by the Marine Ecosystems Research

Laboratory (“MERL”) at the University of Rhode Island. 2004 RIDEM

Report at 1. The MERL experiment was designed to study the

relationship between nitrogen and phosphorus loading and various

response variables in a tank system structured to model the Narragansett

Bay system. Fact Sheet at 12-13; RTC at 29. Based on its analysis of

this information and other information in the record, the Region

determined that “a seasonal reduction of nitrogen to no more than 5.0

mg/l is required at the [District’s Treatment Plant] in order to achieve

water quality standards.” Fact Sheet at 14. The Region specifically

determined that “the limits on total nitrogen are necessary to ensure

compliance with Rhode Island Water Quality Standards.” RTC at 19.

The Region recognized that there are uncertainties in its analysis, but

concluded that “[t]here is no realistic likelihood, * * * that water quality

standards could be met with a less stringent nitrogen limit than the one

proposed.” Fact Sheet at 14; see also RTC 29-32, 50, 94. The Region
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 In the Fact Sheet, the Region stated, “[b]ased on the available evidence, 34

including nitrogen loadings from the [District’s Treatment Plant] and the discharge of the

Blackstone River to the Seekonk River, where the greatest impacts have been measured,

EPA has concluded that a seasonal reduction of nitrogen to no more than 5.0 mg/l is

required at the [District’s] facility in order to achieve water quality standards.” Fact

Sheet at 14. The Region also stated in its response to comments that “[t]he reductions

required at the [District’s] facility through this permit in conjunction with reductions at

other facilities * * * and improvements are necessary to address the ongoing severe

impairments to the marine fish community and to restore the recreational use of

Narragansett Bay.” RTC at 30. Further, “[o]f the various loading scenarios available to

it, EPA determined that a concentration-based limit of 5 mg/l would be necessary to

address the excessive loading from the facility, which both EPA and Rhode Island have

determined are contributing to ongoing water quality impairments in the Narragansett Bay

system.” Id. at 49. “EPA determined that a limit of 5.0 mg/l total nitrogen for [the

District’s] discharge is necessary in order to achieve water quality standards. Id. at 54.

“The Region has concluded, however, that a nitrogen limit at least [as] stringent as 5.0

mg/l for the [District’sTreatment Plant] is necessary to prevent further degradation of the

Bay.” Id. at 61.

also stated that “no less stringent limit could be imposed that would still

ensure compliance with water quality standards in light of the severe

existing eutrophic condition in the Providence/Seekonk River system,

indicating that it is significantly overallocated for nitrogen.” RTC

at 50. 

34

The District challenges this determination, arguing that the

Region chose the limit “without sufficient technical basis to determine

whether such limit is appropriate and necessary to address impairments

to waterways within Massachusetts or Rhode Island.” Dist. Supp. Pet.

at 24; see also id at 14. The District contends that setting a water

quality-based effluent limit for total nitrogen should be “deferred to the

future completion of a total maximum daily load (‘TMDL’).” Dist.

Supp. Pet. at 11. The District also challenges the Region’s reliance on

the MERL experiment and the District argues that the Region failed to

adequately make numerous adjustments to account for differences

between the physical model and the actual Rivers’ conditions. Dist.

Supp. Pet. at 19-27. In contrast, CLF challenges the Permit’s total

nitrogen limit as not sufficiently stringent to ensure compliance with

water quality standards.
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This subsection first looks, in Part (a) at the question whether the

District has shown clear error or an abuse of discretion in the Region’s

decision to move forward with establishing the limit at this time without

waiting for additional scientific data and analysis, including a TMDL.

Part (b), next, considers whether the administrative record supports the

Region’s decision setting the limit at 5.0 mg/l, and Part (c) looks at the

converse question, whether the record requires a more stringent limit.

a. Further Delay in Setting the Limit Is Not Justified

The District argues that the Permit’stotal nitrogen limit “should

be based on accepted, reliable data and analysis, or if such is not

currently available, deferred to the future completion of a total maximum

daily load (‘TMDL’).” Dist. Supp. Pet. at 11. Although the District

clearly states that it “does not contest” the Region’s statement that the

Region is not required to wait for a TMDL to be developed, the District

nevertheless argues that the Region should have waited for a TMDL.

For example, the District states as follows:

The results of the 1981-84 MERL laboratory tank

studies are not an acceptable substitute for a TMDL to

establish total nitrogen effluent limits. RIDEM should

complete the federally-required TMDL before Region

1 imposes the proposed total nitrogen permit

modification.

Dist. Supp. Pet. at 25. The District also contends that the technical

analysis required for establishing numeric permit limits under section

122.44(d)(1)(vi) is the same as required for establishing a TMDL or

wasteload allocation and that, therefore, the Region committed clear

error by not waiting for the development of more certain science capable

of establishing a TMDL or wasteload allocation for the Narragansett Bay

system. Id. at 15.

The Board rejects any suggestion that the Region’s decision to

proceed without waiting to develop a TMDL or wasteload allocation was
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clear error or an abuse of discretion. The regulations specifically

contemplate that permit issuers will establish numeric permit limits when

there is no TMDL or wasteload allocation. Subsection (vii) requires the

permitting authority to “ensure” that effluent limits are consistent with

“any available wasteload allocation.” 40 C.F.R. § 122.44(d)(1)(vii)

(emphasis added). By using the phrase “any available,” the regulations

expressly recognize that a TMDL or wasteload allocation may not be

available.

This reading of the regulation is compelled by the Agency’s

interpretation set forth in the preamble to 40 C.F.R. § 122.44(d)(1),

which expressly outlines the relationship between subsections (vi)

governing the setting of limits based on narrative criteria and (vii), which

requires consistency with “any available” waste load allocation or

TMDL:

The final point about paragraph (vi) is that, in the

majority of cases where paragraph (vi) applies, waste

load allocations and total maximum daily loads will not

be available for the pollutant of concern. Nonetheless,

any effluent limit derived under paragraph (vi) must

satisfy the requirements of paragraph (vii). Paragraph

(vii) requires that all water quality-based effluent

limitations comply with “appropriate water quality

standards,” and be consistent with “available” waste

load allocations. Thus for the purposes of complying

with paragraph (vii), where a wasteload allocation is

unavailable, effluent limits derived under paragraph

(vi) must comply with narrative water quality criteria

and other applicable water quality standards.

54 Fed. Reg. 23,868, 23,878(June 2, 1989) (emphases added). This

formal Agency interpretation set forth in the preamble at the time the

regulation was promulgated expresses the Agency’s expectation that,

while wasteload allocations may not uniformly be available, effluent
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limits must be established without waiting for a TMDL or wasteload

allocation.

There also is no clear error in the Region’s conclusion that the

statute does not contemplate a delay in processing applications for permit

renewal to wait for development of a wasteload allocation or TMDL.

The Region stated that “[t]he clear intent of the statute is to ensure that

permit requirements are updated on a regular basis rather than left in

effect, unexamined and unchanged for long periods of time.” RTC at 31.

The Region correctly observed that “[t]he CWA and EPA’s regulations

require that permits be issued for fixed periods of time not to exceed five

years.” RTC at 31 (citing 33 U.S.C. §§ 1342(a)(3), (b)(1)(B); 40 C.F.R.

§ 12.46(a)). Notably, the statute states an ambitious goal of eliminating

pollution discharges by 1985, CWA § 101(a)(1), 33 U.S.C. § 1251(a),

and it generally makes the discharge of any pollutant unlawful, and

requires there to “be achieved” “not later than July 1, 1977, any more

stringent limitation, including those necessary to meet water quality

standards.” CWA § 301(a), (b)(1)(C), 33 U.S.C. § 1311(a), (b)(1)(C).

The statute also prohibits the issuance of a permit “[i]f the imposition of

conditions cannot insure such compliance” with applicable water quality

requirements of affected states. CWA § 402(a)(2), 33 U.S.C.

§ 1341(a)(2).

The District has cited no law, regulation, or Agency policy that

would allow a permit application to remain pending for an indefinite,

unlimited extension of time to allow additional scientific data or analysis

to be developed to support the applicant’s claim that its discharges will

not violate the water quality standards of affected states. To the

contrary, scientific uncertainty is not a basis for delay in issuing an

NPDES permit. The Board has specifically held that “[i]n the face of

unavoidable scientific uncertainty, the Region is authorized, if not

required, to exercise reasonable discretion and judgment.” In re

Dominion Energy Brayton Point, LLC, 13 E.A.D. 407, 426 (EAB 2007).

The federal courts in reviewing Agency decisions have similarly

recognized that scientific uncertainty is not a bar to administrative
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decisionmaking: “We do not demand certainty where there is none.

There may be no strong reason for choosing [a particular numerical

standard] rather than a somewhat higher or lower number. If so, we will

uphold the agency’s choice of a numerical standard if it is within a ‘zone

of reasonableness.’” Small Refiner Lead Phase-Down Task Force v.

EPA, 705 F.2d 506, 525 (D.C. Cir. 1983) (citation omitted); see also

Hercules, Inc. v. EPA, 598 F.2d 91, 116-17 (D.C. Cir. 1978). More than

three decades ago, the D.C. Circuit aptly described the CWA’s balance

when confronted with a difficult situation and the obligation to eliminate

water quality impairments: “* * * EPA may issue permits with

conditions designed to reduce the level of effluent discharges to

acceptable levels. This may well mean opting for a gross reduction in

pollutant discharge rather than the fine-tuning suggested by numerical

limitations. But this ambitious statute is not hospitable to the concept

that the appropriate response to a difficult pollution problem is not to try

at all.” Natural Resources Defense Council, Inc. v. Costle, 568 F.2d

1369, 1380 (D.C. Cir. 1977) (emphasis added) (finding unlawful a rule

that would have exempted certain discharges from permitting

requirements based on the difficulty in setting limits). Here, the

District’s “wait and see” approach would allow the Distirct to continue

discharging without any limit on total nitrogen discharges – effectively

abdicating the responsibility to set permit limits when faced with

difficulty establishing the limit.

The Region also explained that “[i]t is not appropriate to adopt

a ‘wait and see’ approach” in the circumstances of this case where the

record demonstrates “there is no reasonable likelihood that water quality

standards relative to eutrophication will be achieved with less stringent

limits.” RTC at 32. Further, “[w]ith regard to the Upper Narragansett

Bay, for the past decade or more RIDEM expended significant resources

in an attempt to simulate the estuary through the use of mathematical

models and had concluded that the system was too complicated to
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 The Board rejects the District argument that merely because the Region 35

referred to the so-called Kester model, the Region in effect acknowledged that a useful

model for the rivers exists. Dist. Supp. Pet. at 27. As the Board stated in Attleboro, there

is “no indication that the Kester Model will adequately address nutrient impacts or that

it would be helpful in deriving nitrogen permit limits.” Attleboro, slip op. at 23, 14

E.A.B. at __. 

simulate with available mathematical models.” RTC at 96. The 35

Region also explained that its “decision to move forward now with a

nitrogen limit” takes into consideration “the existing severe nitrogendriven cultural eutrophication in the receiving waters and the tendency

for nitrogen to not only exacerbate existing water quality impairments

but to persist in the environment in a way that contributes to future water

quality problems. In light of these factors, delay in establishing permit

limits is inappropriate.” RTC at 96. As described below, the Region

based its determination to set a total nitrogen limit of 5.0 mg/l on a

substantial body of record evidence.

All of these reasons – the regulation’s direction to establish

water quality-based effluent limits even in the absence of a TMDL or

wasteload allocation, the statute’s directive and policy to move forward

expeditiously to address pollution problems in the Nation’s waters, and

the specific facts here regarding the severe impairment of the affected

waters and the lack of current ability to mathematically model the fate

and transport of nitrogen in those waters – are more than sufficient to

defeat the District’s argument that the Region committed clear error or

abuse of discretion in declining to wait any longer before establishing the

Permit’s water quality-based effluent limit for total nitrogen.

b. The Data and Analysis in the Record Support a 5.0 mg/l

Total Nitrogen Limit

This part considers the District’s and MassDEP’s challenges to

the specific information, data, and analysis the Region used to explain its

decision setting the Permit’s water quality-based effluent limit for total

nitrogen at 5.0 mg/l. The District argues that the Region clearly erred in

utilizing the results of the MERL physical model experiment, because
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the MERL experiment was designed to model the Narragansett Bay and,

according to the District, is not appropriate to be used as a physical

model of the Providence and Seekonk Rivers. Dist. Supp. Pet. at 19-27.

The District argues that the differences between the physical model and

the Rivers demonstrate that it was not appropriate for the Region to

consider the MERL data. The District further argues that even if use of

the MERL model were appropriate, the Region did not make appropriate

and sufficient adjustments to account for the differences. Id.

Specifically, the District argues that “river systems are entirely different

than bays” and “the conditions in the Providence and Seekonk River are

materially different than the conditions under which the experiments

were conducted.” Id. at 19-20. The District identifies concerns

regarding attenuation and flushing that it believes the Region failed to

adequately take into account. MassDEP raises similar arguments. In

short, the District and MassDEP argue that the imprecision and

uncertainty in the data and analysis in the record preclude the Region’s

decision setting the Permit’s limit at 5.0 mg/l and requiring a remand.

As explained below, none of these arguments demonstrate clear error in

the Region’s decision.

In general, the selection of representative data for the analysis

under section 122.44(d)(1) is a technical judgment that falls within the

permit issuer’s discretion and technical expertise. See In re Washington

Aqueduct Water Supply Sys., 11 E.A.D. 565, 583 (EAB 2004); accord

American Iron & Steel Inst. v. EPA, 115 F.3d 979, 1006 (D.C. Cir.

1997). Similarily, the use of a physical model, instead of a

mathematical model or other site-specific model, to derive effluent

limitations is a technical judgment that also falls within the Region’s

discretion and expertise. In re City of Attleboro, MA Wastewater

Treatment Plant, NPDES Appeal Nos. 08-08 & -09, slip op. at 17 (EAB

Sept. 15, 2009), 14 E.A.B. __. In addition, the applicable regulation in

the present case authorizes the Region to consider “relevant” information

in establishing numeric permit limits to achieve narrative state water

quality criteria. 44 C.F.R. § 122.44(d)(1)(vi)(A), (B). As such, the

petitioner bears a particularly heavy burden to establish clear error or an

abuse of discretion because the Board generally defers to the permit
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issuer on questions of technical judgment. Attleboro, slip op. at 17, 14

E.A.B. __ ; Dominion, 12 E.A.D. at 510; In re Peabody W. Coal Co.,

12 E.A.D. 22, 33-34 (EAB 2005); In re Teck Cominco Alaska, Inc.,

11 E.A.D. 457, 473 (EAB 2004).

For technical issues, the Board determines whether the record

demonstrates that the permit issuer duly considered the issues raised in

the comments and whether the approach ultimately adopted by the permit

issuer is rational in light of all the information in the record. Attleboro,

slip op. at 17-18, 14 E.A.B. __; Dominion, 12 E.A.D. at 510; In re Gov’t

of D.C. Mun. Separate Storm Sewer Sys., 10 E.A.D. 323, 348 (EAB

2002) (“DC MS4”); NE Hub, 7 E.A.D. at 568. If the Board is satisfied

that the permit issuer gave due consideration to comments received and

adopted an approach in the final permit decision that is rational and

supportable, the Board typically will defer to the permit issuer. NE Hub,

7 E.A.D. at 568. Thus, the question here is whether the Region

explained its determination to rely on the MERL data and whether the

Region’s analysis is rational and supported in the record. 

In its response to comments, the Region rejected the suggestion

that it cannot use the MERL experiment because it is a physical model,

not mathematical: “[t]hat the MERL tank experiments were a physical

rather than mathematical model and could not completely simulate the

complex natural setting of Narragansett Bay does not undermine the

relevance and validity of the model to the nitrogen limits here.” RTC

at 96. The Region’s position in this regard is consistent with EPA

policy:

There are many other examples of empirical models

used to relate environmental forcing functions to

ecological responses, especially nutrient

load/concentration and response relationships. Much of

the professional aquatic ecological literature reports on

use of empirical models (e.g., Chapters 2 and 3).

Empirical models have their limitations, but when
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judiciously applied, they offer a highly useful tool to

water quality managers.

Office of Water, U.S. EPA, EPA-822-B-01-003, Nutrient Criteria

Technical Guidance Manual, Estuarine and Coastal Marine Waters at 9-

2 (Oct. 2001). Empirical modeling is a simplified representation of a

system, such as the MERL physical model, from which observational or

experimental data is collected.

The Region also explained that the MERL data is particularly

relevant here to understanding the extent of existing nitrogen impairment

and required nitrogen reductions:

The basic relationship demonstrated by the MERL tank

experiments between the primary causal and response

variables relative to eutrophication corresponds to what

is actually occurring in the Providence/Seekonk River

system. Both the MERL tank experiments and the data

from the Providence/Seekonk River system indicate a

clear correlation between nitrogen loadings, dissolved

oxygen impairment and chlorophyll a levels.

RTC at 48.

The Region explained the observed consistency between the

MERL experiment and the conditions in the Providence and Seekonk

Rivers with respect to dissolved oxygen (“DO”) as follows:

Low dissolved oxygen levels, as well as supersaturated

dissolved oxygen levels, are indicators of cultural

eutrophication. Figures 1 through 3 in the Evaluation of

Nitrogen Targets and WWTF Load Reductions for the

Providence and Seekonk Rivers show the dissolved

oxygen measurements taken from MERL tank

experiment and demonstrate that the range and

variability of DO increases with increased nutrient
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loading. As described in the text of the report, and

shown in Figure 13, the DO in the Seekonk River

showed patterns of DO variability similar to that of the

high enrichment tanks in the MERL experiments.

RTC at 48. The Region explained the observed consistency between the

MERL experiment and the conditions in the Providence and Seekonk

Rivers with respect to chlorophyll a as follows:

Phytoplankton, as measured by chlorophyll a levels, is

an even stronger response indicator of cultural

eutrophication than DO. Coastal areas without high

nutrient loads are expected to have chlorophyll a levels

in the 1 to 3 :g/l range * * *. Massachusetts has

identified chlorophyll a levels of less than 3 :g/l as

representing excellent water quality and chlorophyll a

levels similar to the levels in the Providence/Seekonk

River system as representing significantly impaired

waters * * *. Peak chlorophyll a levels in the

Providence/Seekonk River system have exceeded 200

:g/l * * *. The MERL tank experiments showed a

correlation between nitrogen loading rates and

chlorophyll a levels * * *. These results were

consistent with RIDEM data from 1995-96, which

indicate that mean photoplankton chlorophyll a levels in

the three Seekonk River monitoring stations ranged

from 14 :g/l to 28 :g/l, with the highest levels in the

upper reaches of the river and the lowest levels in the

lower reaches of the river * * *. These chlorophyll a

levels correlate with total nitrogen levels and with the

dissolved inorganic nitrogen levels * * *.

RTC at 48 (citations omitted). There is no clear error in these reasons

for considering the MERL data in the Region’s analysis of an

appropriate effluent limitation for nitrogen given the observed

consistency between nitrogen levels and the response variables of DO
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and chlorophyll a. Neitherthe District, nor MassDEP, directly challenge

the Region’s articulated reasons for utilizing the MERL data. Instead,

both the District and MassDEP argue that the MERL experiment did not

model a number of River features that they contend would impact

concentration of nitrogen in the River environment, namely dilution,

attenuation, and contribution of other sources. As explained below, the

District’s and MassDEP’s arguments are not sufficient to show that the

Region committed clear error or abused its discretion.

Both the District and MassDEP argue that the MERL experiment

used a “flushing rate” – the rate at which water flows in and out of the

system – that is different from the Rivers’ flushing rate and that

understates dilution of nitrogen discharges in the River environment.

Dist. Supp. Pet. at 21-22, 24; MassDEP Supp. Pet. at 14. Both observe

that the Rivers flush at a rate of several days – that is, the total volume

of inflow and outflow equals the Rivers’ volume in several days time –

whereas the MERL experiment used a flushing rate of 27 days. Dist.

Supp. Pet. at 21-22, 24; MassDEP Supp. Pet. at 14. While MassDEP

does not explain how it believes a different flushing rate would impact

nitrogen-laden discharges in the Rivers, the District attempts such an

explanation in a footnote. Dist. Supp. Pet. at 21 n.3. As described

below, the District’s explanation, however, is unpersuasive as an effort

to demonstrate that the MERL data is irrelevant and that the Region did

not take this difference into account.

The District explains that the flushing rate impacts the dilution

of nitrogen-laden discharges – the District states that the interaction in

the MERL experiment between flushing rate of inflow water and grams

of nitrogen added to the tank under the highest level, referred to as the

32x loading, would produce an ambient nitrogen concentration at

equilibrium of 2.68 mg/l. Dist. Supp. Pet. at 21 n.3 (calculating the

equilibrium point under the MERL experiment 32x loading). The

District asserts that a more rapid flushing rate will produce a lower

equilibrium nitrogen concentration. Id. That statement is correct for an

experiment where a more rapid flushing rate is achieved by mixing the

same mass of nitrogen with a higher volume of inflow water, as the
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 It is undisputed that in low flow conditions, the District’s Treatment Plant,

36

with a design capacity of 56 million gallons per day, dominates the Blackstone River’s

flow of 5.5 million gallons per day. Fact Sheet at 2.

District describes in its example. Id. In the District’s example, the lower

equilibrium is a direct consequence of a lower concentration of nitrogen

in the inflow (the nitrogen is diluted by a higher volume of inflow). The

District has not, however, identified a source of inflow water that will

dilute the District’s discharge to produce a lower ambient concentration.

As noted above, under low flow conditions, the District’s discharge

dominates the Backstone River’s flow.36

Significantly, the Permit’s discharge concentration limit of 5.0

mg/l is almost two times higher than the concentration level the District

calculates was present in the MERL experiment’s most severely

impaired 32x tanks. The District’s argument does not demonstrate how

the Rivers’ flushing rate will dilute the 5.0 mg/l discharge concentration

to produce an ambient concentration low enough at the point of impact

to achieve the DO and chlorophyll a levels that would be consistent with

a healthy marine environment. The MERL experiment at both the 32x

loading and at the lower 16x loading produced ambient nitrogen

concentrations that were correlated with DO and chlorophyll a levels

consistent with a severely impaired waterway. Compare 2004 RIDEM

Report at 1-8 with RTC at 48 (discussing and citing Office of Water, US

EPA, EPA-822-B-01-003, Nutrient Criteria Technical Guidance

Manual: Estuarine and Coastal Marine Waters (Oct. 2001), and

MassDEP, Univ. of Mass. Dartmouth School of Marine Science and

Tech., Massachusetts Estuaries Project – Site-Specific Nitrogen

Thresholds for Southeastern Massachusetts Embayments: Critical

Indicators (Interim Report, July 21, 2003)).

Both the District and MassDEP contend that the 2004 RIDEM

Report identified an inconsistency between the MERL data and the

observed River conditions based on flushing rate. See Dist. Supp. Pet.

at 22; MassDEP Sup. Pet at 14. The 2004 RIDEM Report noted that

mean dissolved inorganic nitrogen (“DIN”) observed in 1995/1996 River
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data was lower than would be expected from the mean MERL data. See

2004 RIDEM Report at 12. While MassDEP points to this inconsistency

as showing that the MERL experiment failed to “account for real-world

variables,” MassDEP Supp. Pet. at 14, the District argues that the MERL

data “substantially overstate the impact of the 1995/1996 loading” and

that the lower observed DIN “is entirely consistent with more rapid

flushing times of the River systems, which result in far lower ambient

concentrations.” Dist. Supp. Pet. at 22. 

These arguments, however, do not address the 2004 RIDEM

Report’s observation that the lower River DIN data may be attributable

to factors other than flushing, such as DIN uptake by macroalgae and

denitrification in the bottom waters. 2004 RIDEM Report at 12. The

Region, in its response to comments, also identified other explanations

for the discrepancy in DIN values, including “stratification,” RTC at 49,

and the 2004 RIDEM Report’s discussion of the Rivers’ flushing rate in

low flow conditions, 2004 RIDEM Report at 12. More important, the

District’s and MassDEP’s arguments do not show error in the Region’s

reasons for finding the MERL data relevant, namely the consistency

between the MERL data and Rivers’ data with respect to the correlation

between nitrogen levels and DO and chlorophyll a. RTC at 48. Finally,

the Region acknowledged that differences in flushing rate is one source

of uncertainty that warranted rejecting a permit limit based on the limit

of technology, 3.0 mg/l, and setting the limit at the less stringent level of

5.0 mg/l. RTC at 49. In short, the arguments do not show clear error in

the Region’s decision in setting the 5.0 mg/l limit, to take some

uncertainty on flushing rates into account.

The District and MassDEP argue that the Region made errors in

the calculation of attenuation – the rate at which nitrogen is lost in the

river flow between the point of discharge and where the water impairing

impact is observed. MassDEP Sup. Pet. at 14-15; Dist. Supp. Pet. at 32.

As explained in Attleboro, there is no entitlement for a permit limit to be

reduced on account of attenuation. Attleboro, slip op. at 36-37, 14

E.A.B. at __. In particular, the District mistakenly assumes that the

Region determined that water quality compliance will be achieved by “an
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equivalent 5 mg/l discharge at the mouth of the Blackstone River” and

that the concentration in the District’s discharges can be adjusted upward

to account for the attenuation that occurs in the River. Dist. Supp. Pet.

at 31. The Region made no such determination and the District’s

assumption is contradicted by evidence in the record. Specifically, the

Region explained as follows:

Both the Woonsocket and UBWPAD discharges enter

Upper Narragansett Bay through the headwaters of the

Seekonk River, which is the most impaired section of

Upper Narragansett Bay. The RIDEM 2004 study

indicates that thissegment of the Bay currently receives

nitrogen loads at a rate 24 times higher than the average

Bay-wide loading. The limit EPA believes necessary to

attain water quality standards (i.e., 5.0 mg/l) will result

in a loading to the Seekonk River of 6.5 times the Baywide loading. UBWPAD is the dominant source of

nitrogen to the Blackstone, even after accounting for

attenuation, from the Blackstone to the Seekonk. In

addition, the estimated nitrogen delivery factor for the

Blackstone River will increase in the future as actions

are taken to address phosphorus driven eutrophication.

RTC at 54. The Region’s analysis speaks to how much the District’s

total nitrogen discharges must be reduced in order to address the

identified water quality problems. Notably, the 2004 RIDEM Report

indicates significant eutrophication in the Seekonk and Providence

Rivers, as evidenced by low DO and high chlorophyll a mean values, at

a mean total nitrogen concentration in the River ranging from only 0.63

mg/l to 1.46 mg/l. 2004 RIDEM Report at 12, tbl.3. The District’s and

MassDEP’s arguments are simply insufficient to establish that the

concentration of total nitrogen in the District’s discharges can be higher

than 5.0 mg/l at the point of discharge and not cause or contribute to

nitrogen-driven eutrophication violations in the Seekonk and Providence

Rivers when significant impairment was observed at ambient

concentrations in the River of 0.63 mg/l to 1.46 mg/l. 
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Moreover, the District and the Region have not identified any

record evidence sufficient to show clear error in the Region’s statement

that “the current evidence indicates that attenuation of nitrogen in the

Blackstone River is small and further reductions in phosphorus-driven

eutrophication levels in the Blackstone are likely to result in even lower

nitrogen attenuation rates in the future.” RTC at 30. More specifically,

the Region explained as follows:

Significantly, the second analysis showed that as

phosphorus discharges to the river are reduced, the

delivery of nitrogen increased. The reason for the

reduced attenuation for nitrogen is that phosphorusdriven algal growth is the primary cause of nitrogen

uptake. Given that the two largest sources of

phosphorus to the River (UBWPAD and Woonsocket)

are both proposed to have limits of 0.1 mg/l total

phosphorus (which are more stringent than the 0.75

mg/l limit on which RIDEM’s analysis was based) and

that other point sources will also be required to reduce

phosphorus loadings, a further increase in the delivery

of nitrogen to Narragansett Bay can be expected.

RTC at 45-46. The District and MassDEP have not pointed to any

record evidence showing the Region is clearly wrong in stating that there

will be less nitrogen attenuation as phosporus discharges are reduced.

In addition, the Board concludes that MassDEP’s identification of a

temporal difference between two data sets the Region used in its

attenuation analysis, MassDEP Supp. Pet. at 14-15, does not show clear

error in the Region’s determination that the data sets are representative.

The selection of representative data for the analysis is a technical

judgment that falls within the permit issuer’s discretion and technical

expertise. In re Washington Aqueduct Water Supply Sys., 11 E.A.D. 565,

583 (EAB 2004).

The question before the Board in this appeal is not whether the

Region, in taking differences between the model and the natural
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environment into account, including dilution and attenuation, could have

selected a somewhat higher or lower number than 5.0 mg/l, but rather the

question is whether the Region’s decision falls so far outside a zone of

reasonableness that it constitutes clear error or abuse of discretion.

Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 525

(D.C. Cir. 1983) (“We do not demand certainty where there is none.

There may be no strong reason for choosing [a particular numerical

standard] rather than a somewhat higher or lower number. If so, we will

uphold the agency’s choice of a numerical standard if it is within a ‘zone

of reasonableness.’” ); see also Hercules, Inc. v. EPA, 598 F.2d 91, 116-

17 (D.C. Cir. 1978). Here, the Region explained that “[i]n establishing

the nitrogen limit in the permit, EPA took into account uncertainties in

extrapolating the physical model to a complex, natural setting such as

Upper Narragansett Bay.” RTC at 30. The Region explained further,

“[b]ecause the physical model does not generate a definitive level of

nitrogen control that can be applied to a real world discharge, but instead

a range of loading scenarios which are subject to some scientific

uncertainty, EPA was required to exercise its technical expertise and

scientific judgment based on the available evidence when translating

these laboratory results and establishing the permit limit.” RTC at 49.

As explained above, the District’s and MassDEP’s arguments fail to

show that the Region’s use of the MERL data bear no rational

relationship to the natural environment of the Narragansett Bay and

Providence and Seekonk Rivers, or that the Region’s adjustments are

clearly erroneous. Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914,

923 (D.C. Cir. 1998) (“An agency’s use of a model is arbitrary if that

model ‘bears no rational relationship to the reality it purports to

represent.’” (quoting Am. Iron and Steel, 115 F.3d at 1005)); Chemical

Mfrs. Ass’n v. EPA, 28 F.3d 1259, 1265 (D.C. Cir. 1994).

As highlighted by CLF’s arguments discussed below in Part

II.D.2.c(ii), but for concerns regarding uncertainty in the analysis, the

2004 RIDEM Report would have concluded that reducing nitrogen

discharges to the limit of technology, or 3.0 mg/l, would be required.

The Region chose to take the uncertainty into account by Permitting the

District’s discharges at a concentration that is 1.67 times higher than the
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 CLF contends that the Permit’s limit for total nitrogen of 5.0 mg/l does not 37

meet the standards set forth in 40 C.F.R. §§ 122.4(d) and .44(d)(1), which prohibit the

issuance of a permit where the permit’s conditions do not ensure compliance with

applicable state water quality standards and where the permitted discharges cause or

contribute to a violation of water quality standards. Id. at 8. CLF also argues that the

narrative treatment optimization limit for November through April does not comply with

these requirements. CLF Pet. at 15-16. CLF argues that “the total nitrogen and

(continued...)

limit of technology. The Board finds unpersuasive the District and

MassDEP’s arguments that the uncertainty and imprecision in the

Region’s analysis precludes the Region’s decision and requires a

remand, thereby allowing the District to continue discharging without

any limit on total nitrogen. Long ago, the D.C. Circuit interpreted the

CWA as authorizing EPA, in setting permit limits, to require “a gross

reduction in pollutant discharges rather than the fine-tuning suggested by

numerical limitations” because “this ambitious statute is not hospitable

to the concept that the appropriate response to a difficult pollution

problem is not to try at all.” NRDC v. Costle, 568 F.2d 1369, 1380 (D.C.

Cir. 1977). The Region’s decision is consistent with Rhode Island’s

interpretation of what is required to comply with its water quality

standards. RTC at 50; 2004 RIDEM Report at 28. Although the

Region’s decision setting the limit at 5.0 mg/l in the present case is based

on an analysis that does not render a precise numerical calculation and

has some uncertainty, the District and MassDEP have not shown that the

Region’s determination is clearly erroneous or an abuse of discretion. 

Accordingly, the Board denies review of the Region’s decision that 5.0

mg/l is the appropriate numerical value for the total nitrogen limit.

c. The Region Made an Adequate Finding that the 5.0 mg/l

Limit Will “Ensure” Compliance with Water Quality

Standards

CLF argues that the Permit’s total nitrogen limit of 5.0 mg/l is

not sufficiently stringent for the months of May through October and

also that a numeric limit must be applied year-round, Conservation Law

Foundation Petition (“CLF Pet.”) at 15-16. For the following reasons, 37
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(...continued) 37

phosphorus limits on the Facility are inadequate to either assure attainment of water

quality standards in the receiving waters or eliminate the Facility’s contribution to water

quality violation in the Blackstone River or the downstream salt water influenced

systems.” CLF Pet. at 6-7. 

CLF has not demonstrated clear error or abuse of discretion in the

Region’s determination that the Permit’s total nitrogen limit is sufficient

to ensure compliance with water quality standards. The analysis begins

by considering whether the Region made an adequately clear

determination that the Permit’s total nitrogen limit will “ensure”

compliance with applicable water quality standards as required by 40

C.F.R. § 122.4(d) and CWA section 401(a)(2). Because, as explained

below in subpart (i), the Region did make an adequately clear “ensure”

determination, the Board next considers in subpart (ii) whether CLF has

shown clear error or abuse of discretion in the Region’s determination.

(i) The Region’s Finding Is Adequately Clear that the

5.0 mg/l Total Nitrogen Limit is Sufficient to

“Ensure” Compliance

Generally, because the Board gives substantial deference to the

permit issuer on questions of scientific or technical judgment, a

petitioner bears a heavy burden when requesting review of a permit

issuer’s decision on issues that are technical in nature – such as the

Region’s finding in the present case that the Permit’stotal nitrogen limit

of 5.0 mg/l is necessary and sufficient to ensure compliance with Rhode

Island’s water quality standards as required by 40 C.F.R. § 122.4(d) and

CWA section 401(a)(2). See In re Town of Ashland Wastewater

Treatment Facility, 9 E.A.D. 661, 667 (EAB 2001); In re NE Hub

Partners, L.P., 7 E.A.D. 561, 567-68 (EAB 1998), review denied sub

nom. Penn Fuel Gas, Inc. v. U.S. EPA, 185 F.3d 862 (3d Cir. 1999). The

Board, however, requires that the permit issuer clearly articulate its

determination for it to be accorded this deference. See In re City of

Marlborough, Mass. Easterly Wastewater Treatment Plant, 12 E.A.D.

235, 248-52 (EAB 2005); DC MS4, 10 E.A.D. at 342.
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 The Board also explained that “more importantly, even accepting the 38

Region’s suggestion that ensuring compliance was what the permit writer had in mind,

we find nothing in the record, apart from [the State’s] section 401 certification, that

supports the conclusion that the Permit would, in fact, achieve water quality standards,”

and the Region did not dispute that there was a “body of information drawing the

certification into question.” DC MS4, 10 E.A.D. at 342-43. 

In Marlborough, the Board remanded a permit because “the

Region [had] not sufficiently explained where or how it [the ensure

finding] is reflected in the record before us.” Marlborough, 12 E.A.D.

at 252. The Board rejected as inadequate the Region’s determination

because the Region merely found that “‘it may be possible to meet’”

water quality standards. Marlborough, 12 E.A.D. at 249 (quoting the

applicable fact sheet in that case). The Board held that “a mere

possibility of compliance does not ‘ensure’ compliance” as required by

the statute and regulations. Id. at 250. Likewise, in DC MS4, the Board

explained that “[w]ithout an articulation by the permit writer of his

analysis, we cannot properly perform any review whatsoever of that

analysis and, therefore, cannot conclude that it meets the requirement of

rationality.” DC MS4, 10 E.A.D at 342-43. The Board found inadequate

the permit issuer’s conclusion that the permit condition was “reasonably

capable” of achieving water quality standards. DC MS4, 10 E.A.D.

at 342, 343. The Board explained that “the ‘reasonably capable’

formulation, accepting as it is of the potential that the Permit will not, in

fact, attain water quality standards, does not appear to be entirely

comparable to the concept of ensuring compliance.” Id.38

The DC MS4 and Marlborough cases appropriately reflect that,

when the permit writer either was unable on the permitting record before

it or failed to clearly articulate a conclusion conforming to the statute

and regulations, the Board will not extend to the permit issuer’s

equivocal statements a more certain or unambiguous meaning. Because

the Board generally defers to the Region’s “determination of issues that

depend heavily upon the Region’s technical expertise and experience,”

In re Envotech, L.P., 6 E.A.D. 260, 284 (EAB 1996), the Board expects

permit writers to express the “ensure” finding with clear, unambiguous,

declarative words supported by appropriate analysis and references to
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 The Region is encouraged to choose clear and direct wording to express 39

whether a permit’s conditions ensure compliance with applicable water quality standards.

record evidence. Marlborough, 12 E.A.D. at 252 (permit remanded

where the permit issuer failed to “sufficiently explain[] where or how it

[the ensure finding] is reflected in the record”). 

The Region’s statements in the present case may be

distinguished from the permitting decisions in both DC MS4 and

Marlborough where the Board found that the permit issuer failed to

make an adequately clear finding that the permit would ensure

compliance. Here, the Region’s response to comments is adequately

clear in its meaning. The Region began by expressly identifying its duty

“to ensure compliance with applicable water quality standards” and, in

the body of the same paragraph, the Region pointed to record evidence

supporting its conclusion stated at the end of the paragraph that the

Permit’s total nitrogen limit is “reasonable and sufficiently stringent to

comply with the CWA.” RTC at 50. The Board concludes that, although

the Region could have chosen wording that would have been more clear

and specific in its meaning, nevertheless a fair and logical reading of 39

this paragraph is that the Region determined, based on the record before

it, that the Permit’s total nitrogen limit is sufficient to “ensure”

compliance with applicable water quality standards.

This meaning is also supported by the Region’s statement at

another place in its response to public comments, where the Region

stated that “the significant nitrogen reductions required by the permit, as

well as other permits in the watershed, are consistent with achieving

water quality standards. Further limitations * * * are not warranted at

this time.” RTC at 6 (emphasis added). Although the Region’s finding

of “consistent” with achieving water quality standards may be

ambiguous and, therefore, on its own, would not be clear, the Region

also specifically found that “further limitations * * * are not warranted,”

thereby clarifying the Region’s conclusion that, based on the record, the

Permit’s total nitrogen limit is sufficiently stringent to achieve water
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 The Region stated its preliminary finding in the Fact Sheet that “b]ased on 40

the available evidence, * * * EPA has concluded that a seasonal reduction of nitrogen to

no more than 5.0 mg/l is required at the [District’s] facility in order to achieve water

quality standards.” Fact Sheet at 14 (emphasis added). 

quality standards. Id. Thus, to the extent that CLF argues the Board 40

should remand the present case for the same reason the Board remanded

in Marlborough, CLF’s Reply at 8-9, the Board must reject CLF’s

contention. Here, the Region stated its determination more clearly and

consequently the Board concludes that the Region made an adequately

clear finding that the total nitrogen Permit limit is sufficient to ensure

compliance with applicable water quality standards. The Board next

considers whether CLF has met its burden to show that the 5.0 mg/l limit

is clearly erroneous.

(ii) The 2004 RIDEM Report Does Not Show that the

Region Committed Clear Error or an Abuse of

Discretion in Finding that 5.0 mg/l is Sufficiently

Stringent

CLF argues that the evidence in the record, namely the 2004

RIDEM Report, requires the Region to set the Permit limit for total

nitrogen at 3.0 mg/l, the limit of technology, and to impose additional

controls. CLF Pet. at 10. CLF argues that the Region “has not provided

any lawful justification for failing to impose [total nitrogen] effluent

limitation at the limit of technology consistent with the RIDEM Study.”

CLF Pet. at 10. At bottom, CLF’s appeal depends on two erroneous

propositions: first, CLF contends that “the record is clear that there is no

uncertainty with regard to the fact that the permit limits necessary to

obtain water quality standards require implementation of the limit of

technology,” Trans. at 7, and, second, CLF contends that, even if there

is uncertainty, the Board’s Marlborough decision requires the Region to

“err on the side of stronger limits” and to choose “the most protective

limits achievable in light of the scientific uncertainty,” CLF Reply at 9.

Based on this, CLF argues that the Permit limit must be set at the limit

of technology of 3.0 mg/l and that the Permit must require other
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 According to CLF, the 2004 RIDEM Report relied upon by the Region in its

41

permitting decision provides the “one definitive statement in the record relevant to setting

a total nitrogen limit.” CLF Reply at 2-3.

 It appears that this quote actually comes from a subsequent report. See 42

Rhode Island Department of Environmental Management, Plan for Managing Nutrient

Loadings to Rhode Island Waters, at 3 (Feb. 1, 2005). This subsequent report does not

provide a scientific analysis of the available data and research; it merely refers to the

earlier 2004 RIDEM Report as part of the 2005 report’s identification of steps Rhode

(continued...)

enforceable controls and offsets to meet water quality standards. CLF

Pet. at 10. As explained below, the Board rejects the first argument as

an inaccurate characterization of the administrative record in this case,

and the Board rejects the second argument as an attempt to place

improper limits on the Region’s exercise of reasonable scientific and

technical discretion and judgment in setting permit limits. 

CLF argues that “the record is clear that there is no uncertainty

with regard to the fact that the permit limits necessary to obtain water

quality standards require implementation of the limit of technology.” Tr.

at 7. CLF contends that “[t]he RIDEM study unequivocally states that 41

even a limit of 3 mg/l would not result in attainment of water quality

standards.” CLF Reply at 4. Upon scrutiny, however, CLF’s argument

must fail because the 2004 RIDEM Report, in fact, concludes that there

is uncertainty regarding whether the limit of technology, 3.0 mg/l, is

necessary to achieve Rhode Island’s water quality standards. 

According to CLF, the 2004 RIDEM Report found that “[t]his analysis

[referring to a discussion of the MERL physical model] indicates that

even if the [Massachusetts and Rhode Island waste water treatment

plant] discharges are reduced to the limit of technology (total nitrogen of

3 mg/l), the Seekonk River and portions of the Providence River would

not fully comply with existing water quality standards (minimum of 5.0

mg/l, except as naturally occurs) * * *.” CLF Pet. at 9; see also CLF

Reply at 2-3. The Board has not been able to locate this exact quote in

the 2004 RIDEM Report, but it does contain a similar statement: 42
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(...continued) 42

Island has taken and is planning to take to reduce nitrogen in Rhode Island’s waters.

 The Region further stated: 43

When evaluating whether it had met its obligations under

section 301(b)(1)(C) and 401(a)(2) to ensure compliance with

applicable water quality standards, including those of affected states,

EPA also accounted for the fact that Rhode Island, when assigning

permit limits to facilities within its own borders in accordance with

its own water quality standards, did not conclude more stringent

limits would be necessary or appropriate at this time. Under Rhode

Island’s permitting approach, limits of 5 mg/l and 8 mg/l have been

(continued...)

“[t]his analysis indicates that the limit of technology is required but will

not fully meet existing water quality standards.” 2004 RIDEM Report

at 27. While this statement does support CLF’s concern regarding

whether the Permit’s limit of 5.0 mg/l is sufficiently stringent, this

statement from the 2004 RIDEM Report is not the definitive,

unequivocal conclusion that CLF characterizes it to be. The 2004

RIDEM Report goes on to state in a subsequent paragraph:

While we believe that the MERL tank results provide an

adequate representation of the relationship between

nitrogen and oxygen levels in the Providence and

Seekonk Rivers, some uncertainty remains regarding

predicted water quality improvements and loading

reductions necessary to meet water quality standards.

2004 RIDEM Report at 27. Thus, contrary to CLF’s characterization,

the 2004 RIDEM Report, in fact, found that while the MERL experiment

was a “fair representation” of conditions and would suggest a limit of 3.0

mg/l, the Report also found that there is “some uncertainty” regarding

whether effluent limitations based on the limit of technology are

necessary to ensure attainment of water quality standards. It is this

uncertainty that the Region identified when explaining why it chose a

Permit limit less stringent than the limit of technology. RTC at 49.43
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(...continued) 43

imposed on various Rhode Island POTWs whose discharges impact

Narragansett Bay, and Rhode Island has recommended that similar

limits be placed on certain Massachusetts facilities that are impacting

the Bay. See Evaluation of Nitrogen Targets and WWTF Load

Reductions for the Providence and Seekonk Rivers, RIDEM,

December 2004. In arriving at its decision to impose a nitrogen

effluent limit of 5 mg/l on the District facility, EPA regarded Rhode

Island’s position as additional evidence that the limit was reasonable

and sufficiently stringent to comply with the CWA.

RTC at 50.

 Once the Region has clearly articulated its finding, the Board is able to 44

consider it on appeal, giving due deference to the “determination of issues that depend

heavily upon the Region’s technical expertise and experience.” Envotech, 6 E.A.D.

at 284.

Accordingly, the 2004 RIDEM Report is not at odds with the Region’s

decision, and it does not demonstrate clear error as CLF argues.

The Board also rejects CLF’s argument that the Board’s

Marlborough decision requires that “[w]hen there is any amount of

uncertainty, EPA must err on the side of stricter limits.” CLF’s Reply

at 9. To the contrary, Marlborough’s holding is narrower: the Board

held that a permit must be remanded if the permit issuer failed to

“sufficiently explain[] where or how it [the ensure finding] is reflected

in the record.” Marlborough, 12 E.A.D. at 252.

44

Not only does CLF’s argument lack support in Marlborough, it

also must be rejected because it is at odds with the Region’s exercise of

reasonable discretion and judgment – it would establish a rigid rule

requiring the Region to select the most stringent achievable limit when

there is any conflict or uncertainty in the record regarding attainment of

water quality standards. The Board has never adopted such an inflexible

rule, nor is one required by the statute or regulations. To the contrary,

“[i]n the face of unavoidable scientific uncertainty, the Region is

authorized, if not required, to exercise reasonable discretion and

judgment.” Dominion, 13 E.A.D. at 426. Nothing in the regulations or
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our prior case law remove the Region’s discretion to resolve the conflict

in the evidence.

As explained above in discussing the District’s and MassDEP’s

arguments, the statute and regulations do authorize, and to a certain

extent require, the Region to take a precautionary approach. See e.g., 40

C.F.R. § 122.44(d)(1) (referring to “reasonable potential”); id. § 122.4(d)

(requiring the permit to “ensure” compliance with water quality

standards); CWA § 401(a)(2) (requiring permit to “insure” compliance

with water quality standards). The statutory word “insure” and the

comparable regulatory term “ensure” make clear that the permit issuer

should have a high degree of confidence in the determination, but there

is no discernable intent to remove all discretion, particularly with respect

to scientific and technical determinations that are inherently not free

from all doubt. These provisions provide boundaries to the Region’s

discretion; these provisions do not remove all discretion and technical

judgment as would an interpretation that requires the permit writer to

impose the limit of technology whenever there is any uncertainty. 

In considering arguments on appeal involving matters requiring

scientific or technical expertise, “the Board looks to determine whether

the record demonstrates that the permit issuer duly considered the issues

raised in the comments and whether the approach ultimately adopted by

the permit issuer is rational in light of all the information in the record.”

Attleboro, slip op. at 17-18, 14 E.A.B. at __ (citations omitted). “If the

Board is satisfied that the permit issuer gave due consideration to

comments received and adopted an approach in the final permit decision

that is rational and supportable, the Board typically will defer to the

permit issuer.” Id. Giving deference to the permit issuer’s scientific and

technical judgment “serves an important function within the framework

of the Agency’s administrative process; it ensures that the locus of

responsibility for important technical decisionmaking rests primarily

with the permitting authority, which has the relevant specialized

expertise and experience.” Peabody, 12 E.A.D. at 33; see also In re

Carlota Copper Co., 11 E.A.D. 692, 708 (EAB 2004) (explaining that “a

petitioner seeking review of issues that are technical in nature bears a
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 The 2004 RIDEM Report indicates that the following factors create “some 45

uncertainty” regarding “predicted water quality improvements and loading reductions

necessary to meet water quality standards”:

[S]ignificantly lower mean DIN [dissolved inorganic nitrogen]

concentrations were observed in the Providence and Seekonk Rivers

as compared to the MERL experiment for an equivalent loading rate,

which may be the result of large differences between the field and

experimental flushing times, uptake by macroalgae and

denitrification in the bottom waters. Also the MERL experiment DO

[dissolved oxygen] sampling protocol does not provide sufficient

data to fully assess compliance with the recently established EPA

guidelines regarding cumulative periods of low dissolved oxygen.

2004 RIDEM Report at 27.

heavy burden because the Board generally defers to the Region on

questions of technical judgment”)); Envotech, 6 E.A.D. 260, 284 (EAB

1996) (“absent compelling circumstances, the Board will defer to a

[r]egion's determination of issues that depend heavily upon the [r]egion’s

technical expertise and experience”).

Here, the Region’s response to comments acknowledged and rejected

CLF’s contention that the record requires a total nitrogen limit set at the

limit of technology. As explained above, the Region found that the

Permit’s total nitrogen limit of 5.0 mg/l is sufficient to ensure

compliance with Rhode Island’s water quality standards. RTC at 6, 47-

51. The Region explained that “[d]espite the severe nitrogen-related

impairments in the receiving waters, EPA opted not to impose a limit

based on more stringent loading scenarios at this time in order to account

for uncertainties associated with the physical model.” RTC at 49. It is

noteworthy that the Region identified the same reasons for finding

uncertainty in the MERL experiment’s results as the 2004 RIDEM

Report identified. Compare 2004 RIDEM Report at 27 with RTC at 6, 45

17, 29-30, 47-51, 55, 73, 94-96. The Region explained that “when

evaluating the adequacy of the limit, EPA was also aware that the

particular approach it adopted possesses conservative elements which

enhance the protectiveness of the permit beyond [what was contemplated
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 The Region explained that the use of a concentration limit, rather than a mass 46

limit, provides additional protection while the District’s discharges remain below the

Treatment Plant’s design capacity. RTC at 49-50. As discussed below, both MassDEP

and the District have requested review of the Region’s use of a concentration limit, rather

than a mass limit. See below Part II.D.3.

 Specifically, the regulatory provisions pertaining to state certification provide 47

that EPA may not issue a permit until a certification is granted or waived by the state in

(continued...)

by the MERL tank experiments].” RTC at 49. There is no apparent 46

irrationality or clear error in these reasons for finding the Permit’s 5.0

mg/l total nitrogen limit sufficient to ensure compliance with Rhode

Island’s water quality standards, and CLF has not shown clear error in

any of these reasons the Region gave for its decision.

As noted above, the Region also placed particular emphasis on

“the fact that Rhode Island, when assigning permit limits to facilities

within its own borders in accordance with its own water quality

standards, did not conclude more stringent limits would be necessary or

appropriate at this time * * * and Rhode Island has recommended that

similar limits be placed on certain Massachusetts facilities.” RTC at 50.

It is appropriate for the Region to take into consideration the views of

Rhode Island, as an affected state, regarding what is required to achieve

compliance with Rhode Island’s own water quality standards.

Specifically, the Region is required by regulation to determine

whether the Permit’s limits will “ensure” compliance with the water

quality standards of affected states. 40 C.F.R. § 122.4(d); see also CWA

§ 401(a)(2). The statute’s prohibition under section 401(a)(2) of issuing

a permit that does not “insure” compliance with water quality standards

of all affected states serves a largely parallel function to the certification

requirement under section 401(a)(1), which the permit applicant must

obtain from the state where the discharge originates. It is noteworthy

that, for state certifications under section 401(a)(1), the Region is under

a duty to defer to the requirements the state deems necessary to comply

with its water quality standards. This prevents EPA from relaxing any 47
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(...continued) 47

which the discharge originates, 40 C.F.R. § 124.53(a), and that “[w]hen certification is

required * * * no final permit shall be issued * * * [u]nless the final permit incorporates

the requirements specified in the certification,” id. § 124.55(a). 

 The Board likewise rejects theDistrict’s argumentthat the total nitrogen limit 48

of 5.0 mg/l “very well may not lead to standards attainment” and therefore “are not

necessary to attain standards.” Dist. Supp. Pet. at 11. The District has not shown any

clear error or abuse of discretion in the Region’s determination, based on the

administrative record of this matter, that the Permit’s total nitrogen limit is sufficient to

ensure compliance with Rhode Island’s water quality standards. Moreover, the District’s

argument is specious because rather than leading to a delay in imposing more stringent

requirements, as the District argues, a finding that the Permit cannot ensure compliance

with applicable water quality standards would require denial of the District’s permit

application.

requirements, limitations or conditions imposed by state law and made

a condition of the state’s certification. See, e.g., Teck Cominco, 11

E.A.D. at 488-89; In re City of Moscow, Idaho, 10 E.A.D. 135, 151

(EAB 2001); In re City of Jacksonville, Dist. II Wastewater Treatment

Plant, 4 E.A.D. 150, 157 (EAB 1992). Although section 401(a)(2) does

not require certification from downstream affected states and the Region

was not required to defer to the affected state’s interpretation of its water

quality standards, nevertheless, it certainly was appropriate for the

Region to consider and take into account Rhode Island’s interpretation

of Rhode Island law when the Region made its determination. Not only

has Rhode Island generally not required facilities located in Rhode Island

to reduce nitrogen discharges to the limit of technology, but also in the

2004 RIDEM Report, Rhode Island recommended a 5.0 mg/l total

nitrogen limit for the District.

Accordingly, the Board concludes that CLF’s arguments do not

show clear error or abuse of discretion in the Region’s determination that

the Permit’s total nitrogen limit of 5.0 mg/l is sufficient to ensure

compliance with Rhode Island’s water quality standards. The Board 48

also rejects CLF’s call for a year-round numeric limit and additional

controls beyond the numeric permit limit, which CLF based on the same

erroneous contention regarding the 2004 RIDEM Report’s certainty.
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3. The Record Supports the Region’s Decision to State the Total

Nitrogen Limit as a Mass, Not Concentration, Limit

MassDEP argues that 40 C.F.R. § 122.45(f)(1) requires permit

limits to be stated in terms of mass, unless one of three exceptions

applies, and MassDEP contends that none of the exceptions have been

established in this case. MassDEP Supp. Pet. at 3, 7-10. MassDEP also

argues that the Region violated EPA policy when it selected a total

nitrogen limit stated as a concentration, rather than stated in terms of

mass. Id. at 3, 10-12.

The Region explained in its response to comments that section

122.45(f)(1)(ii) allows a limit to be stated as a concentration “when

applicable standards and limitations are expressed in terms of other units

of measurement,” one of the three exceptions under section 122.45(f)(1).

RTC at 17. The Region explained that “[i]n this instance, we believe

expression of limits on total nitrogen as concentration limits is necessary

to meet Rhode Island’s water quality standards.” RTC at 17. As

explained below, in reaching this conclusion the Region relied on Rhode

Island’s interpretation of its narrative water quality standard.

On appeal, MassDEP argues that the phrase “applicable

standards and limitations” as used section 122.45(f)(1)(ii) is a defined

term and the Region’s interpretation is an “impermissible reinterpretation

of the plain language of the regulation.” MassDEP Supp. Pet.at 7.

“Applicable standards and limitations means all State, interstate and

federal standards and limitations to which a ‘discharge’ * * * is subject

under the CWA, including ‘effluent limitations,’ water quality standards,

standards of performance, toxic effluent standards or prohibitions, ‘best

management practices,’ [and] pretreatment standards * * * under

sections 301, 302, 303, 304, 306, 307, 308, 403 and 405 of CWA.” 40

C.F.R. § 122.2. MassDEP argues that, because the Rhode Island water

quality standards are narrative,” they are not “expressed” in terms of a

concentration and therefore this exception does not apply in the present

case. MassDEP Supp. Pet. at 9.
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MassDEP is correct that Rhode Island’s water quality standard

is expressed as a narrative description of water quality. See 12-190-001

R.I. Code R. § 8.D.(1). However, Rhode Island has interpreted this

narrative standard, as applied to control of nitrogen, in terms of a

concentration of the pollutant in effluent discharges. 2004 RIDEM

Report at 23-27. In other words, Rhode Island’s interpretation of its

narrative criterion is “expressed” in terms of a concentration of nitrogen

in effluent discharges. Accordingly, it was not unreasonable for the

Region to conclude that consistency with Rhode Island’s interpretation

of its narrative requirement warranted expressing the Permit’s limit as a

concentration. 

The Region’s response to comments included a discussion of

policy reasons favoring this interpretation in the particular circumstances

of this case:

In this instance, we believe expression of limits on total

nitrogen as concentration limits is necessary to meet

Rhode Island’s water quality standards. A key report

underlying the proposed permit limits is the December

2004 report, Evaluation of Nitrogen Targets and WWTF

Load Reductions for the Providence and Seekonk Rivers,

completed by RIDEM. The report documents that the

Seekonk River is the most nutrient impacted area of

Narragansett Bay: current total nitrogen loads to the

Seekonk River are 24 times higher than the total nitrogen

load to all of Narragansett Bay on a per unit area basis.

If the concentration limitations recommended by the

report were used to establish masslimits using the design

flows of the waste water treatment facilities, the Seekonk

River would receive nitrogen loads of approximately 10

times higher than the Bay-wide loads per unit area. With

the limitations established as concentration limits, at

current flows the Seekonk River would receive nitrogen

loads of approximately 6.5 times higher than the Bay

wide load. * * * Setting the limits in terms of
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 Here, there also is no utility in remanding this Permit to require the Region 49

to impose a mass limit in addition to the concentration limit the Region found necessary

to comply with Rhode Island’s water quality criteria, which may not be the case in other

circumstances.

concentration will enable assessment of the response to

a loading of 6.5 times the Bay-wide loading.

RTC at 17-18. The Region described the use of a concentration limit for

nitrogen as a “conservative element” that enhances the Permit’s

“protectiveness.” RTC at 49.

49

4. The Region Followed Proper Procedures and Gave Sufficient Notice

in Setting the Total Nitrogen Limit

The District argues that the Region did not follow the proper

procedures and notice provisions when the Region determined the

Permit’s numeric effluent limit for total nitrogen. Dist. Supp. Pet. at 16-

19. Specifically, the District argues that, by translating Rhode Island’s

narrative water quality standard into a numeric permit limit, the Region

in effect adopted a numeric water quality standard for the state, which

the District argues may only be accomplished as provided by CWA

section 303(c)(4) through formal rulemaking. Id. at 16-17. The District

also argues that the Region committed clear error by failing to follow the

procedures of 40 C.F.R. § 131.11(a)(2) for developing numeric permit

limits for toxic pollutants to comply with narrative water quality

standards. Id. at 17-19. The District points to both provisions in an

effort to invoke various procedural requirements, including publication

in the Federal Register, as a bar to the Region’s determination of the

Permit’s numeric effluent limit for total nitrogen. Id. at 16-19. Both

arguments must be rejected as relying on inapplicable law. This

proceeding is governed by CWA section 402 and 40 C.F.R.

§ 122.44(d)(1)(vi) and 40 C.F.R. part 124, which provide opportunity for

public hearing and due process appropriate for the issuance of a permit.
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 CWA section 303(c)(4) provides as follows: 50

 The Administrator shall promptly prepare and publish proposed

regulations setting forth a revised or new water quality standard for

the navigable waters involved –

(A) if a revised or new water quality standard submitted by

such State under paragraph (3) of this subsection for such waters is

determined by the Administrator not to be consistent with the

applicable requirements of this Act, or

(B) in any case where the Administrator determines that a

revised or new standard is necessary to meet the requirements of this

Act. 

The Administrator shall promulgate any revised or new standard

under this paragraph not later than ninety days after he publishes

such proposed standards, unless prior to such promulgation, such

State has adopted a revised or new water quality standard which the

Administrator determines to be in accordance with this Act.

CWA § 303(c)(4), 33 U.S.C. § 1313(c)(4).

First, the District’s argument based on CWA section 303(c)(4)

conflates the determination of numeric permit limits in this permitting

proceeding arising under CWA section 402 with federal promulgation of

a state water quality standard under CWA section 303(c)(4). The

statutory section the District cites, section 303(c)(4), by its terms applies

only to circumstances where EPA is required to promulgate a state water

quality standard because the state has failed to promulgate one

complying with the CWA’s requirements. CWA § 303(c)(4), 33 U.S.C.

§ 1313(c)(4). Here, the state of Rhode Island promulgated an

50

applicable water quality standard that EPA long ago determined

complies with the CWA’s requirements. See 12-190-001 R.I. Code R.

§ 8.B.(1)-(2), 8.D.(1);see also State and Tribal Water Quality Standards:

Notice of EPA Approvals and Announcement of EPA Internet

Repository, 66 Fed. Reg. 29,951 (June 4, 2001);

http://www.epa.gov/waterscience/standards/wqslibrary/ri/ri_1_wqr.pdf.

Accordingly, Rhode Island’s water quality standards govern and CWA

section 303(c)(4) is altogether inapplicable. 
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 Nitrogen also is not on the list of “priority pollutants” published at 40 C.F.R. 51

§ 423, App. A. 

Likewise, the District’s argument based on 40 C.F.R.

§ 131.11(a)(2) conflates “toxic” pollutants with pollutants, such as

nitrogen, that have not been designated as “toxic.” Specifically, section

131.11(a)(2) governs the process for determining numeric permit limits

for “toxic pollutants” where the applicable water quality criteria is

narrative. 40 C.F.R. § 131.11(a)(2). The term “toxic pollutants” is

defined as “those pollutants listed by the Administrator under section

307(a) of the Act.” 40 C.F.R. § 131.3(d). Nitrogen is not on the

Administrator’s list of pollutants under CWA section 307(a). 40 C.F.R.

§ 401.15. Accordingly, section 131.11(a)(2), by its terms, does not 51

apply in the present case to the Region’s determination of the Permit’s

numeric effluent limit for total nitrogen.

Contrary to the District’s citation to the inapplicable CWA

section 303(c)(4) and 40 C.F.R. § 131.11(a)(2), this permitting

proceeding and the Region’s determination of the Permit’s effluent

limitation for total nitrogen is governed by CWA section 402, 33 U.S.C.

§ 1342(a), and 40 C.F.R. § 122.44(d)(1)(vi) and the part 124 procedural

rules. In particular, these rules require the Region to provide

“opportunity for public hearing,” 33 U.S.C. § 1342(a)(1), the specific

requirements of which are set forth in 40 C.F.R. part 124, and these rules

specifically authorize the Agency, pursuant to that process, to determine

numeric permit limits for specific pollutants where the state criterion is

narrative. 40 C.F.R. § 122.44(d)(1)(vi). The preamble for the Federal

Register notice promulgating section 122.44(d)(1)(vi) confirms that this

provision is appropriately applied “to set effluent limits to control

discharges (in the absence of state numerical water quality criteria for all

pollutants of concern).” Nat’l Pollutant Discharge Elimination System,

Surface Water Toxics Control Program, 54 Fed. Reg. 23,868, 23,878

(June 2, 1989). In promulgating this regulation, EPA explained that

“EPA’s legal obligation to ensure that NPDES permits meet all

applicable water quality standards, including narrative criteria, cannot be

set aside while a state develops [numeric] water quality standards.” 54
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Fed. Reg. at 23,877. The District may not, in this or any permitting

proceeding, challenge this regulation granting the Region the authority

to set a numeric effluent limit to achieve Rhode Island’s narrative water

quality criterion. See CWA § 509(b)(1), 33 U.S.C. § 1369(b)(1); see

also In re City of Irving, Texas, Municipal Separate Storm Sewer System,

10 E.A.D. 111, 123 (EAB 2001),review denied sub nom City of Abilene

v. EPA, 325 F3d 657 (5th Cir. 2003). In fact, this regulation was

challenged and upheld. American Paper Inst.,Inc. v. EPA, 996 F.2d 346,

348, 351 (D.C. Cir. 1993); see also American Iron and Steel Inst. v. EPA,

115 F.3d 979, 990-91 (D.C. Cir. 1997).

Indeed, in upholding 40 C.F.R. § 122.44(d)(1)(vi), the D.C.

Circuit specifically considered and rejected an argument that the

regulation violated the provisions governing promulgation of state water

quality standards and criteria. The Court explained:

[T]he regulation does not supplant – either formally or

functionally – the CWA’s basic statutory framework for

the creation of water quality standards; rather, it provides

alternative mechanisms through which previously

adopted water quality standards containing narrative

criteria may be applied to create effective limitations on

effluent emissions. As long as narrative criteria are

permissible * * * and must be enforced through

limitations in particular permits, a permit writer will

inevitably have some discretion in applying the criteria

to a particular case. The general language of narrative

criteria can only take the permit writer so far in her task.

Of course, that does not mean that the language of a

narrative criterion does not cabin the permit writer's

authority at all; rather, it is an acknowledgement that the

writer will have to engage in some kind of interpretation

to determine what chemical-specific numeric criteria –

and thus what effluent limitations – are most consistent
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with the state's intent as evinced in its generic standard.

The EPA’s new regulation merely requires that permit

writers engage in this task to create chemical-specific

limitations on discharges of pollutants and gives those

writers three tools with which to do this work in a fairly

regularized fashion. The regulation thus seems to

provide an eminently reasonable means of effectuating

the intent of the previously adopted narrative criteria as

well as Congress’ own intent, made explicit in section

301 of the CWA, that all state water quality standards be

enforced through meaningful limitations in individual

NPDES permits.

American Paper Inst., 996 F.2d at 351 (citations omitted).

In the present case, the Region stated that the Permit’s total

nitrogen numeric effluent limit is established to achieve compliance with

Rhode Island’s narrative water quality criterion, Fact Sheet at 11-12; and

the Region expressly applied 40 C.F.R. § 122.44(d)(1)(vi) in establishing

the Permit’s numeric limit. The District has not alleged that the notice

of opportunity for public comment and public hearing the Region held

during the public comment period, which extended from March 23, 2007

through May 25, 2007, was in any way not in compliance with the part

124 rules. Accordingly, the District has failed to show any clear error or

abuse of discretion in the notice or hearing opportunity afforded the

District.

E. Challenges to the Permit’s Total Phosphorus Limit

The Region set the Permit’s total phosphorus limit at 0.1 mg/l

(100 :g/l) for April 1 to October 31, and 1.0 mg/l for November through

March. Fact Sheet at 10. The Region established this limit applying 40

C.F.R. § 122.44(d)(1)(vi)(B) to ensure compliance with the

Massachusett’s narrative water quality criteria. Id. at 8-9. In reaching

its decision, the Region considered, among other things, two EPA

documents providing guidance on numeric criteria for the Nation’s
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waters: 1) Office of Water, U.S. EPA, Quality Criteria for Water, EPA

440/5-86-001 (May 1, 1986) (the “Gold Book”); and 2) Office of Water,

U.S. EPA, Ambient Water Quality Criteria Recommendations,

Information Supporting the Development of State and Tribal Nutrient

Criteria, Rivers and Streams in Nutrient Ecoregion XIV, EPA-822-B-00-

022 (Dec. 2000) (“Ecoregion XIV Criteria”).

CLF challenges the Region’s decision arguing that the Permit’s

phosphorus limit is not sufficiently stringent. CLF Pet. at 6-7, 17-18.

CLF argues that the maximum applicable criterion should be 0.05 mg/l,

not 0.1 mg/l, and that this more stringent limit should apply year-round.

Id. In contrast, the District argues that the phosphorus limit is too

stringent and that its expired permit’s less stringent limit of 0.75 mg/l

should be retained. Dist. Supp. Pet. at 32-39. For the following reasons,

neither CLF, nor the District, has shown clear error or abuse of

discretion in the Region’s decision setting the Permit’s total phosphorus

limit at 0.1 mg/l for April 1 to October 31 and at 1.0 mg/l for November

through March.

1. The Region’s Reasonable Potential Analysis

The Region concluded that conditions indicative of cultural

eutrophication observed in the Blackstone River immediately

downstream from the District’s discharge point and more generally

throughout the River, combined with the fact that the District’s

discharges dominate the Blackstone River’s flow, establish that the

District’s discharges have the reasonable potential, under 40 C.F.R.

§ 122.44(d)(1)(i) and (ii), to violate Massachusetts’ water quality

criteria. RTC at 107; Fact Sheet at 8-9. Although the District primarily

challenges the particular numeric value the Region established for the

Permit’s total phosphorus limit, the District does appear to challenge the

Region’s reasonable potential determination in one respect. The District

argues that “it is improper to simply cite cultural eutrophication as the

basis for imposition of a numeric permit limit. Rather, the limit must be

justified by connecting the reduced level of phosphorus with a specific

impairment in designated uses.” Dist. Supp. Pet. at 34. As explained
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below, this argument does not show clear error or abuse of discretion in

the Region’s “reasonable potential” determination.

Contrary to the District’s argument, the Region identified the

particular water quality criteria and designated uses violated by the

District’s total phosphorous discharges. Specifically, the Region

explained that Massachusetts’ narrative water quality criteria provide

that nutrients “‘[s]hall not exceed the site specific limits necessary to

control accelerated or cultural eutrophication’” and that “[a]ny existing

point source discharge containing nutrients in concentrations which

encourage eutrophication or growth of weeds or algae shall be provided

with the highest and best practicable treatment to remove such

nutrients.” Fact Sheet at 8 (citing 314 C.M.R. 4.04 & 4.05(5)(c)). The

Region stated further that “the Blackstone River has been designated by

Massachusetts as a habitat for fish, other aquatic life and wildlife and for

primary (e.g. swimming) and secondary (e.g. fishing and boating) contact

recreation.” RTC at 106 (citing 314 C.M.R. §§ 4.05(3)(b) & 4.06 (tbl.

11)). The Region also explained that such waters must be “free of

floating, suspended or settleable solids that are aesthetically

objectionable or could impair uses” and that “[c]hanges to color or

turbidity of the waters that are aesthetically objectionable or useimpairing are also prohibited.” RTC at 107 (citing 314 C.M.R. §

4.05(3)(b)(5), (6)).

The Region also identified the particular phosphorous-driven

conditions observed in the Blackstone River that violate Massachusetts’

criteria and designated uses. In particular, the Region determined that

the Blackstone River is currently impaired by excessive phosphorus

loadings resulting in violations of minimum dissolved oxygen criteria,

high levels of chlorophyll a and high levels of macrophyte and

periphyton growth. Fact Sheet at 8-9 (citing U.S. EPA Region 1,

Blackstone River Initiative Report (May 2001); MassDEP, Blackstone

River Basin 1998 Water quality Assessment Report (2001); MassDEP,

Blackstone River Watershed 2003 DWM Water Quality Monitoring Data

(May 2005); U.S. Army Corps of Engineers, Phase I: Water Quality

Evaluation and Modeling of the Massachusetts Blackstone River (Draft
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Mar. 2004); MassDEP, Blackstone River Watershed 2003 Biological

Assessment (Apr. 4, 2006)). The Region also noted Massachusetts and

Rhode Island have included the Blackstone River on their section 303(d)

lists of impaired waters. Fact Sheet at 8. The Region explained that

“[t]he Blackstone River is listed as impaired for * * * nutrients, organic

enrichment/low dissolved oxygen (DO), flow alterations and other

habitat alterations, pathogens, suspended solids, turbidity, and

objectionable deposits.” RTC at 107. More specifically, the Region

explained that at low flow in the summer of 2003, the following

conditions were observed:

At the first station downstream of the UBWPAD

discharge, instream aquatic vegetation was described as

being “extremely abundant, covering virtually the entire

river bottom and dominated by rooted submergent

macrophytes (coontail, Ceratophyllum sp.; waterweed,

elodea sp.; pondweed, Potamogeton crispus). Slight

turbidity in the water column was noted during sampling.

A luxuriant algal community was also observed, with

green filamentous algae attached to submergent

vegetation and a brown flock covering much of the rocky

substrates.”

Id. at 35. The Region determined that these phosphorus-driven

conditions observed immediately downstream from where the District

discharges, and more generally throughout the Blackstone River,

combined with the fact that the District’s discharges dominate the

Blackstone River’s flow, establish that the District’s discharges have a

reasonable potential to violate Massachusetts’ water quality criteria.

RTC at 107; Fact Sheet at 8-9. 

This analysis the Region provided in the Fact Sheet and

Response to Comments identified specific phosphorus-driven conditions

observed in the River that violate the Massachusetts water quality

standards for both designated uses and narrative criteria. Thus, contrary

to the District’s contention, the Region did not “simply cite[d] cultural
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eutrophication as the basis for imposition of a numeric permit limit”

rather than “connecting the reduced level of phosphorus with a specific

impairment in designated uses.” Dist. Supp. Pet. at 34. The Region

identified the designated uses that are impaired as well as the criteria that

are violated and explained why it concluded there is a reasonable

potential that the District’s discharges cause the observed violations. 

The District has identified no record evidence that would refute

the Region’s conclusion that the identified conditions in the River

immediately downstream from where the District discharges are

attributable at least in part to the District’s discharges, and the District

has not explained why it believes these conditions do not evidence

violation of Massachusetts’ narrative criteria and designated uses.

Accordingly, the District has failed to show clear error in the Region’s

conclusion that the District’s discharges are or may be at a level that

causes, contributes to, or has the reasonable potential to cause violations

of Massachusetts’ water quality standards. 40 C.F.R. § 122.44(d)(1)(i),

(ii). 

2. The Region’s Decision to Set the Total Phophorus Limit at 0.1 mg/l

For Warm-Weather Months and 1.0 mg/l for Cold-Weather Months

The Region set the following total phosphorus numeric limit: 0.1

mg/l (100 :g/l) for the warm-weather period of April 1 to October 31,

and 1.0 mg/l for the cold-weather period of November through March.

Fact Sheet at 10. CLF argues that this limit is not sufficiently stringent

both for the warm- and cold-weather periods. CLF Pet. at 6-7, 17-18. In

contrast, the District argues that the phosphorus limit is too stringent and

that the limit in the District’s expired permit of 0.75 mg/l should be

retained. Dist. Supp. Pet. at 32-39. For the reasons explained below,

CLF and the District have not shown that the Region clearly erred or

abused its discretion in establishing the Permit’s numeric limit.
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a. CLF Did Not Preserve for Appeal Its Objections to the

Phosphorus Limit

CLF challenges the Permit’s phosphorus limit arguing that it is

not sufficiently stringent both for the warm- and cold-weather periods.

CLF Pet. at 6-7, 17-18. CLF’s arguments on appeal are rejected because

CLF has not shown that these issues and arguments were raised during

the public comment period. CLF’s letter submitted during the public

comment period, which stated that “the final permit’s warmweather total

phosphorus limit should be no higher than 0.1 mg/l,” would not have

alerted the Region to CLF’s disagreement with the Region’s proposed

decision to set the limit at 0.1 mg/l. See Letter from Peter Shelley, esq.,

et al, on behalf of CLF to NPDES Permits Unit, U.S. EPA at 2 (May 23,

2007).

On appeal, CLF now raises much more detailed issues and

arguments challenging the Region’s decision. For example, where

CLF’s comment letter stated that the warm-weather limit “should be no

higher than 0.1 mg/l,” id., CLF now argues on appeal that the maximum

applicable criterion should be 0.05 mg/l, CLF Pet. At 6-7, 17-18. CLF

argues that “[g]iven the severity of the pollution issues in these receiving

waters and the pollution loads resulting from the inadequate limit in the

Permit, there is simply no justification for EPA Region 1’s failure to

require that [the District] implement limit-of-technology controls at the

Facility.” CLF Pet. at 18. CLF argues further that the Permit’s

phosphorus limit is “dramatically higher than the applicable standards”

– and that the Region should have adopted the Ecoregion IV Criteria

recommendation of 0.024 mg/l or the Gold Book recommendation of

0.05 mg/l for streams directly discharging into a lake or impoundment.

Id. at 18, 20. CLF also states on appeal that “[t]here is simply no

justification for applying a ‘Gold Book’ criterion applicable to a freeflowing stream to the Blackstone River – a stream that is extensively

impounded.” Id. at 18. CLF also points to a “ecoregional criterion of 24

:g/l expressly developed by EPA for use within Ecoregion XIV, Eastern

Coastal Plains.” Id. CLF argues further that the Region acknowledges

that phosphorus discharged during winter months is likely to settle and
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accumulate in the downstream impoundments and contribute to

impairments during the summer and that, therefore, the Region must

impose a more stringent limit than the Permit’s limit of 1.0 mg/l

applicable during winter months. Id. at 21. None of these detailed

arguments were stated in CLF’s comments submitted during the public

comment period.

The regulation governing permit appeals provides that the

petition for review shall include “a demonstration that any issues being

raised were raised during the public comment period (including any

public hearing) to the extent required by these regulations,” 40 C.F.R.

§ 124.19(a), and the regulation governing public comment provides that:

All persons, including applicants, who believe any

condition of a draft permit is inappropriate * * * must

raise all reasonably ascertainable issues and submit all

reasonably available arguments supporting their

position by the close of the public comment period

(including any public hearing) * * *. 

40 C.F.R. § 124.13 (emphasis added). The Board has routinely applied

these provisions to deny review where the issue or argument “was

reasonably ascertainable but was not raised during the comment period

on the draft permit.” In re Shell Offshore, Inc., 13 E.A.D. 357, 394

(EAB 2007); accord In re Christian County Generation, LLC, 13 E.A.D.

449, 457 (EAB 2008); In re BP Cherry Point, 12 E.A.D. 209, 218-20

(EAB June 21, 2005); In re Kendall New Century Develop., 11 E.A.D.

40, 55 (EAB 2003). 

This “is not an arbitrary hurdle, placed in the path of potential

petitioners simply to make the process of review more difficult; rather,

it serves an important function related to the efficiency and integrity of

the overall administrative scheme. As the Board has explained in the

past, ‘[t]he intent of these rules is to ensure that the permitting authority

* * * has the first opportunity to address any objections to the permit,

and that the permit process will have some finality.’” BP Cherry Point,
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12 E.A.D. at 219 (quoting In re Sutter Power Plant, 8 E.A.D. 680, 687

(EAB 1999)). 

The permitting process requires a specific time for public

comment so that issues may be raised and “the permit issuer can make

timely and appropriate adjustments to the permit determination, or, if no

adjustments are made, the permit issuer can include an explanation of

why none are necessary.” In re Union County Res. Recovery Facility, 3

E.A.D. 455, 456 (Adm’r 1990); accord Sutter Power, 8 E.A.D. at 687.

The opportunity for public comment serves an important role in

establishing the proper staging of the permit decision process:

If an issue is not raised during the notice and comment

process, * * * the permitting authority is provided no

opportunity to address the issue specifically prior to

permit issuance. In such instances, if the Board were to

exercise jurisdiction, it would become the first-level

decisionmaker as to such newly raised issues, contrary

to the expectation that “‘most permit conditions should

be finally determined at the [permit authority] level.’”

Knauf I, 8 E.A.D. at127 (quoting 45 Fed. Reg. 33,290,

33,412 (May 19, 1980)). Alternatively, the Board might

remand such issues back to the permitting authority for

initial determination at that level, potentially resulting

in an unnecessarily protracted permitting process, where

each time a final permit is issued and a new issue is

raised on review, the permit must be sent back to the

permit issuer for further consideration. Such an

approach would undermine the efficiency,

predictability, and finality of the permitting process.

BP Cherry Point, 12 E.A.D. at 219-20. In short, “[t]he effective,

efficient, and predictable administration of the permitting process

demands that the permit issuer be given the opportunity to address

potential problems with draft permits before they become final.” In re

Encogen Cogeneration Facility, 8 E.A.D. 244, 250 (EAB 1999). 
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 Likewise, CLF’s statement in its comment letter that “[t]he limited flushing 52

capacity of this system, combined with the persistence of phosphorus and nitrogen in the

system, warrant consideration of year round application of controls,” simply was not

sufficient to alert the Region that CLF objected that the most stringent achievable limit

should be applied year-round rather than the Permit’s year-round application of controls

in the form of a 0.1 mg/l limit during the warm-weather months and a limit of 1.0 mg/l

during the cold-weather months. See Letter from Peter Shelley, esq., et al, of CLF to

NPDES Permits Unit, U.S. EPA at 2 (May 23, 2007).

In the present case, the Region mentioned both the Gold Book

and the Ecoregion XIV Criteria in the Fact Sheet made available to the

public prior to the public comment period. Fact Sheet at 9. The Region

also specifically stated that those documents recommended criteria

ranging from 0.024 mg/l to 0.1 mg/l and the Region explained why it was

selecting a criterion at the upper end of that range. Id. at 9-10. As noted,

CLF’s own comment letter merely stated that “the final permit’s warm

weather total phosphorus limit should be no higher than 0.1 mg/l.”

Letter from Peter Shelley, esq., et al, of CLF to NPDES Permits Unit,

U.S. EPA at 2 (May 23, 2007). CLF did not mention anywhere in its

comment letter the arguments it now raises on appeal, specifically that

the Region should apply the criterion of 0.024 mg/l recommended by the

Ecoregion IV Criteria , nor did CLF mention the Gold Book 0.05 mg/l

recommendation for streams that discharge directly into a lake or

impoundment. Id. Although CLF’s letter and the attachment to its letter

did make reference to the limits of technology, it did not do so in a

manner that would have alerted the Region to the contentions CLF now

makes on appeal that the Permit is required to have a limit set as

stringent as is achievable under available technology. CLF also has not

identified any other person’s public comments that raised the issues CLF

now raises. Accordingly, CLF’s petition fails to include the required 52

“demonstration that any issues being raised were raised during the public

comment period * * * to the extent required by these regulations,” 40

C.F.R. § 124.19(a), which includes submitting “all reasonably available

arguments” by the close of public comment, id. § 124.13. Therefore,

CLF’s petition with respect to the phosphorus limit must be dismissed.
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b. The Region’s Decision to Establish a New Limit More

Stringent than the District’s Expired Permit’s Limit

The District argues that the 0.1 mg/l warm-weather total

phosphorus limit is too stringent and that the expired permit’s limit of

0.75 mg/l should be retained. Dist. Supp. Pet. at 32-39. The District

argues that the Region should wait and collect data showing the effects

of the District’s Treatment Plant improvements the District made to meet

the 2001 permit’s limit. Dist. Supp. Pet. at 33. The District’s arguments,

however, are not well-aimed at either the regulatory requirements

governing the Region’s decision or the Region’s rationale for its

decision, and therefore, as explained below, the District’s arguments

miss their mark.

The Region applied 40 C.F.R. § 122.44(d)(1)(vi)(B) to establish

the Permit’s water quality-based numeric effluent limit to comply with

Massachusett’s narrative water quality criteria. Fact Sheet at 9. As

explained above, that regulation provides as follows:

Where a State has not established a water quality

criterion for a specific chemical pollutant that is present

in an effluent at a concentration that causes, has the

reasonable potential to cause, or contributes to an

excursion above a narrative criterion within an

applicable State water quality standard, the permitting

authority must establish effluent limits using one or

more of the following options: 

* * * * 

(B) Establish effluent limits on a case-by-case basis,

using EPA’s water quality criteria, published under

section 304(a) of the CWA, supplemented where

necessary by other relevant information * * *.” 
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40 C.F.R. § 122.44(d)(1)(vi)(B). Following the regulation’s direction,

the Region used EPA’s water quality numeric criteria guidance set forth

in the Gold Book and Ecoregion XIV Criteria, supplemented with other

relevant information. Fact Sheet at 9-10. The Region observed that the

Gold Book recommends total phosphorus criteria ranging from 0.025

mg/l to 0.1 mg/l, depending on the characteristics of the water body, and

that the Ecoregion XIV Criteria states that 0.024 mg/l would represent

waters in the region minimally impacted by human activities and without

cultural eutrophication. Id. The Region selected the least stringent

criterion within thisrange, 0.1 mg/l, as the Permit’s warm-weather limit.

Although the District does not directly argue that the Region

should not have used the Gold Book and Ecoregion XIV Criteria, the

District does state that those Agency criteria documents are based on old

data, and the District argues that the Region should wait for the

development of additional site-specific data and a TMDL or other

mathematical model for phosphorus in the Blackstone River. Dist. Supp.

Pet. at 32-33, 37-39. The Board rejects this contention, first, because, in

referring to the criteria guidance in the Gold Book and Ecoregion XIV

Criteria, the Region followed the regulation’s direction to use EPA

criteria. See 40 C.F.R. § 122.44(d)(1)(vi)(B). The District has not

pointed to record evidence of another available, relevant method

authorized under section 122.44(d)(1)(vi) that the Region could have

used to identify a numeric criterion for the Blackstone River. See 40

C.F.R. § 122.44(d)(1)(vi)(A), (B), (C) (authorizing permit limits to be

based on draft state criteria and EPA’s water quality criteria,

supplemented with other relevant information, or based on an indicator

parameter). 

The District’s argument that the Region should wait to allow

time to collect data showing the effects of the 0.75 mg/l limit imposed in

2001, Dist. Supp. Pet. at 33, simply misapprehends the basis of the

Region’s decision. A limit of 0.75 mg/l does not fall within the criteria

range the Region identified from EPA’s criteria documents, which is a

regulatorily- authorized method for determining the numeric permit limit.
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Further, the District’s references to the expired permit’s limit

and analysis underlying that limit, including the previously-used

mathematical model, referred to as QUAL2E, Dist. Supp. Pet. at 32-33,

39, only address the control of low dissolved oxygen levels and do not

address other cultural eutrophication problems identified by the Region.

See RTC at 41. The Region explained: “The model was not used to

develop effluent limitations addressing cultural eutrophication in the new

permit because efforts to update the model in light of new data were

unsuccessful.” Id. The Region explained that the 2001 permit’s “0.75

mg/l total phosphorus limit was based on meeting dissolved oxygen

criteria in the Blackstone River only and did not address eutrophication

related impairments in either the Blackstone River or Narragansett Bay.”

RTC at 25; see also id. at 35. 

The Region identified new data the Army Corps of Engineers

collected in 2003 showing that macrophytes dominate the Blackstone

River immediately below the District’s discharge point – “[t]he plants

that dominated these reaches all have in common that they grow in

dense, thick, and long masses and are all indicators of eutrophic

freshwater.” Id. The Region explained that the QUAL2E model cannot

be used to analyze this problem: “Since the model [QUAL2E] is not able

to simulate rooted aquatic plants, efforts to update the model based on

the new Corps of Engineers data were unsuccessful relative to simulating

instream phosphorus levels.” Id. 

To address the specific problems identified in the Blackstone

River, the Region followed the direction of 40 C.F.R. § 122.44(d)(1)(vi)

and utilized EPA’s water quality numeric criteria guidance found in the

Gold Book and Ecoregion XIV Criteria in setting the numeric limit for

phosphorus. In attacking the Region’s decision, the District has not

sought to meet the standard established by 40 C.F.R. § 122.44(d)(1)(vi).

The District has not pointed to any EPA or Massachusetts numeric

criteria, nor any other relevant record evidence, that would support a

total phosphorus limit of 0.75 mg/l as sufficient to control cultural

eutrophication immediately and further downstream from the District’s

discharge point.
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The Board also rejects the District’s effort to introduce on appeal

certain output from a mathematical model currently in development by

the District. See Dist. Supp. Pet. at 38 & ex. G. As noted in the response

to comments, development and testing of the model has not been

completed, and was therefore not utilized in setting a phosphorus limit

for this Permit. RTC at 76.

More generally, the Board rejects the District’s request for delay

in establishing the phosphorus limit for the same reasons the Board

rejected similar arguments calling for delay with respect to the total

nitrogen limit – specifically, the regulations direct the permit issuer to

establish water quality-based effluent limits even in the absence of a

TMDL or wasteload allocation and the statute favors expeditious efforts

to address water quality problems, rather than delay. See Part

II.D.2.b(ii)(a). The Region also appropriately and sufficiently identified

the existing severe phosphorus-driven cultural eutrophication violating

water quality criteria and impairing the Blackstone River’s designated

uses as a further reason for imposing a stringent permit limit at this time

without waiting for further data. RTC at 40-41. The Region was not

required to wait for further data, development of a TMDL, or

development of a mathematical model for total phosphorus in the

Blackstone River. 

The Region also considered whether site-specific data collected

in 2003 would support a permit limit at 0.75 mg/l, even though that limit

would not fall within the recommendation of the Gold Book and

Ecoregion XIV Criteria. Specifically, the Region noted that data

collected by MassDEP and the Army Corps of Engineers in 2003 do not

support a 0.75 mg/l limit. RTC at 35. The Region explained that the

District discharged at close to the 0.75 mg/l level in 2003 and yet the

Blackstone River exhibited characteristics of significant eutrophication.

Id. (identifying an August, 2003, monthly average discharge

concentration of 0.8 mg/l). The District attempts to attack the Region’s

analysis by arguing that the observations regarding River conditions

were not made in the same month when the Distict’s discharges were

near the 0.75 mg/l level, and that therefore the 2003 data do not show
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See U.S. Army Corps of Engineers, Phase I: Water Quality Evaluation and 53

Modeling of the Massachusetts Blackstone River, (Draft 2004); MassDEP, Blackstone

River Watershed 2003 DWM Water Quality Monitoring Data (May 2005).

use-impairing cultural eutrophication at that discharge level. Dist. Supp.

Pet. at 36. The District’s argument, however, must fail for two reasons.

First, the record contains multiple observations of severe cultural

eutrophication throughout the 2003 summer indicating that the River 53

observations are sufficiently aligned with the discharge data. Second

and more important, even if the District’s argument were to show that

there is a misalignment between the 2003 River condition observations

and the District’s discharge near the 0.75 mg/l level, there would still be

no identified evidence in the record showing that a limit of 0.75 mg/l is

sufficient to ensure compliance with Massachusetts’ water quality

standards. In other words, without the 2003 information, the most

relevant information in the record regarding appropriate numeric criteria

would still be the recommendations of the Gold Book and Ecoregion XIV

Criteria. Accordingly, these arguments do not show clear error in the

Region’s decision to apply to the Blackstone River the criteria range of

0.024 mg/l to 0.1 mg/l taken from the Gold Book and the Ecoregion XIV

Criteria. 

The District’s argument that the Region should have taken into

account dilution of the District’s discharges in the River at high flows

and at seasonal average flow also does not show clear error in the

Region’s analysis. Dist. Supp. Pet. at 36-37, 39. The Region explained

that Massachusetts regulations require the dilution value to be based on

the known or estimated lowest average flow that occurs for seven

consecutive days with a recurrence interval of once in ten years (known

as the 7Q10 low flow rate). Fact Sheet at 4, 9-10 (citing 314 CMR

4.03(3)). The District cites no law or regulation authorizing the Region

to consider dilution at flow conditions other than the 7Q10 flow rate and,

thus, the District has not identified any regulatory basis for the Region

to consider high or average flow rates. 
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Nevertheless, the Region explained that the data regarding

ambient phosphorus concentrations in River flows at higher than 7Q10

indicate that there is no or little dilution available in the River flow. The

Region explained that the District’s “discharge dominates the flow in the

river under low flow conditions and during most storm events.” RTC

at 60. Specifically, the Region explained:

Wet weather monitoring conducted by MassDEP under

its Smart Monitoring program at a water quality station

(Middle River) just upstream of the UBWPAD

discharge, at a time when the Worcester Combined

Sewer Overflow Facility upstream was not discharging,

resulted in total phosphorus concentrations ranging

from 45 - 330 :g/l with an average of 132 :g/l

(MassDEP Smart Monitoring data: 9/20/2000,

11/20/2003, 4/28/2004, 6/23/2004). The lack of

dilution and the elevated background concentrations of

phosphorus during wet weather events supports the

applicability of the 0.1 mg/l total phosphorus limit

under all flow conditions.

RTC at 60.

The District argues that the Region’s response to comments

inappropriately excluded data points that would have produced lower

mean and median values. Dist. Supp. Pet. at 37. The District, however,

fails to state that the excluded data points are not representative of high

flow, or wet weather events, and therefore are not relevant to the issue

the Region was analyzing, namely whether the District’s discharges

would be diluted during high flows. There is no clear error in the

Region’s decision to exclude these data points for that analysis.

Similarly, there is no clear error in the Region’s decision to consider one

somewhat higher data point as representative of the River’s high flow

conditions. The District’s argument that this data point is an “outlier,”

without more, is not a persuasive explanation as to why the data utilized

by the Region is not representative. Absent such an explanation, the
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 Even utilizing the data the District advocates at most would result in a 54

background River concentration that is a few hundredths of an mg/l lower than the

identified 0.1 mg/l criterion. Dist. Supp. Pet. at 37. The District has not shown that such

a small amount of possible dilution would allow a materially higher Permit limit. 

 The District asserts, without citation to any legal authority, that “the Region 55

must exercise its own judgment and analysis in determining the impact on a downstream

(continued...)

Board will not unseat the Region’stechnical judgment on representative

data. In re Washington Aqueduct Water Supply Syst., 11 E.A.D. 565,

584 (EAB 2004) (selection of representative data is a technical judgment

that falls within the permit issuer’s discretion and technical expertise).54

For all of these reasons, the Board concludes that the District has not

demonstrated that the Region’s decision to set the Permit’s total

phosphorus limit at 0.1 mg/l is clearly erroneous or an abuse of

discretion. 

F. The Permit’s Fecal Coliform Limit

The Region set the water quality-based effluent limit for fecal

coliform at 200 colony forming units (“cfu”)/100 ml as a monthly

geometric mean and 400 cfu/100 ml as a daily maximum for the period

of April 1 through October 31, and for the period of November 1 through

March 31, the Region set the limit at a monthly geometric mean of 571

cfu/100 ml and a daily maximum of 1429 cfu/100 ml. Permit at 4, 8 n.

6. The District does not object to the warm-weather limit for the period

of April 1 to October 31; but, the District does object to the cold-weather

limit applicable to November 1 through March 31. Dist. Supp. Pet.

at 39-43. The District states that the cold weather limit has the effect of

requiring disinfectant treatment year-round and the District believes that

this is not necessary to ensure compliance with Rhode Island’s water

quality standards.

The District, in effect, argues that the Region should have

ignored Rhode Island’s water quality standard because it designates a

55
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(...continued) 55

state, not merely implement that state’s regulation in its stead. Here, given the absence

of any real evidence connecting the District’s discharge to impairment of designated uses,

the CWA does not authorize the imposition of water quality-based effluent limits based

on Rhode Island standards.” Dist. Supp. Pet. at 43.

use for these waters – primary human contact – that does not occur in

cold weather. The District argues as follows:

Even if winter disinfection were necessary to protect primary

contact recreation in Rhode Island, there are no places for

engaging in such which might be impacted by the District’s

discharge. The winter effluent limit has been set to protect a use

that does not occur in areas not designated for that use.

Dist. Supp. Pet. at 40. The District also connects this argument

regarding the River’s designated use with challenges to the sufficiency

of the data the Region used in its reasonable potential analysis – the

District states that the Region “attempt[s] to protect a non-existent use

with unsound science.” Id. at 43. Specifically, the District asserts that

the Region relied on data that is both old and limited in number. Id.

at 41. The District argues further that the Region’s analysis failed both

to account for dilution of the Region’s discharge in the Blackstone River

and to take into account, and control, other sources of fecal coliform. Id.

at 41-42.

The District’s arguments, however, fail to demonstrate clear error

or abuse of discretion in the Region’s decision. The District’s argument

regarding what it asserts is the “non-existent use” of the Rivers for

primary human contact during the cold-weather period conflates the

notion of “existing use” with that of “designated use.” Rhode Island law

defines “designated uses” as “those uses specified in water quality

standards for each waterbody or segment whether or not they are being

attained.” 12-190-001 R.I. Code R. § 7. This meaning is confirmed by

contrast with the definition of “existing use,” which means the uses
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 The Region based its decision on a version of Rhode Island’s water quality

56

standards that has subsequently been replaced by Rhode Island and approved by EPA

with a more stringent fecal coliform criteria providing that not more than 10% of the

samples may exceed 400 MPN/100ml.

“that are actually attained in a waterbody on or after November 28,

1975.” Id. (emphasis added). 

Here, Rhode Island water quality standards classify the

Blackstone River as “B1” and the Seekonk River as “SB1.” Both class

B1 and SB1 waters “are designated for primary and secondary contact

recreational activities.” 12-190-001 R.I. Code R. § 8.B.(1)(d), (2)(c)

(emphasis added). Because this regulation uses the word “designated,”

rather than “existing,” it unambiguously describes the waters falling

within these classes as having a designated use of primary human

contact, and because this is the designated use, it applies “whether or not

[the uses] are being attained.” 12-190-001 R.I. Code R. § 7. The

applicable Rhode Island water quality regulations also do not contain a

seasonal exclusion for a cold-weather period. 12-190-001 R.I. Code R.

§ 8.B.(1)(d), (2)(c). Thus, there is no ambiguity in Rhode Island’s law

establishing a year-round designated use for the Blackstone and Seekonk

Rivers as including both primary and secondary contact recreational

activities.

There is also no ambiguity, or seasonal exception, in Rhode

Island’s numeric criterion for fecal coliform for these waters. Class B1

waters must comply with the following numeric criterion for fecal

coliform: “Not to exceed a geometric mean value of 200 [MPN/100 ml]

and not more than 20% of the total samples taken shall exceed 500

[MPN/100 ml].” 12-190-001 R.I. Code R. § 8.D.(2) tbl.1. Class SB1 56

waters must comply with a criterion of 50 MPN/100ml, geometric mean.

Id. tbl.2. 

The applicable federal regulations also are not ambiguous: those

regulations require that the Permit the Region issues “shall include”

water quality-based effluent limits to “[a]chieve water quality standards”
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established by Rhode Island. 40 C.F.R. § 122.44(d)(1). Specifically,

“[l]imitations must control all pollutants” that may cause, contribute to,

or have a reasonable potential to cause a violation of Rhode Island’s

water quality standards. Id. § 122.44(d)(1)(i) (emphasis added). The

District has cited no legal authority – and none exists – for the Region to

ignore these clear requirements of the federal NPDES permitting

regulations and Rhode Island’s water quality standards. Thus, the Board

must reject the District’s argument that the Region has authority to issue

a permit with a seasonal exception for controlling fecal coliform in cases,

like the present one, where the Region determined that the fecal coliform

discharges have the reasonable potential to violate Rhode Island’s water

quality standards.

The District also has not established clear error or abuse of

discretion in the Region’s determination that the District’s fecal coliform

discharges have reasonable potential to violate Rhode Island’s numeric

criterion for fecal coliform. The Region based its interpretation on water

quality sampling collected in the Blackstone River in 2005 and 2006 at

the “last accessible point on the main stem of the Blackstone River prior

to its crossing the MA-RI border.” Fact Sheet at 8. The Region

described the data and its conclusions drawn from the data as follows:

This sampling included monthly samples collected

during dry weather from November 2005 through

February 2006, a period during which the upstream

Massachusetts POTWs were not disinfecting. Fecal

coliform counts of 1700, 1300, 700, and 1700 MPN/100

ml were recorded during this period. The geometric

mean of these samples is 1273 MPN/100 ml, and all four

of the samples exceeded 500 MPN/100 ml, therefore

violating RI water quality standards. During dry

weather, the only significant sources of fecal coliform

bacteria in the river are upstreamPOTWs. The sampling

also included monthly samples collected during April

2005 and October 2005, a period during which upstream

POTWs are disinfecting; samples collected during this
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time indicate the criteria were generally met. EPA

believes that the discharge from [the District], being the

dominant point source on the river, has the reasonable

potential to cause or contribute to violations of Rhode

Island Water Quality Standards.

Fact Sheet at 8. In its response to comments, the Region also discussed

data showing a similar nearly uniform violation of water quality

standards during wet weather, or high flow, events. RTC at 63-64. The

Region also explained that there is effectively no dilution available – the

Region reached this conclusion by observing that, in periods when the

POTWs are disinfecting, the River flow is in compliance with the fecal

coliform criteria during low flow conditions, but is in violation during

wet weather conditions. Id. Thus, the Region concluded that, during wet

weather conditions, the River is in violation from other sources and the

District’s discharges would not be diluted by a less polluted River flow.

Other than arguing that the wet-weather data are too old and that

there are not a sufficient number of samples, Dist. Supp. Pet. at 41, the

District does not identify any error in the Region’s analysis. Notably, the

District does not point to any record evidence that would contradict the

data the Region relied upon. Mere argument about data age, without

evidence of changed conditions, or mere argument about the number of

samples, without evidence showing that the number of samples is

inadequate, is not sufficient to establish clear error in the Region’s

technical determination that these data are representative. In re

Washington Aqueduct Water Supply Syst., 11 E.A.D. 565, 584 (EAB

2004) (selection of representative data is a technical judgment that falls

within the permit issuer’s discretion and technical expertise).

The Board also rejects the District’s contention that the Region

failed to appropriately take into account “other sources of coliform in the

River.” Dist. Supp. Pet. at 42. The Region’s analysis shows that it

considered whether other sources would be a significant contributor

during low flow conditions and the Region concluded that “[d]uring dry

weather, the only significant sources of fecal coliform bacteria in the
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 The Region explained that permit limits based on numeric criteria within state 57

water quality standards typically use both the acute and chronic criteria: “Maximum daily

limits are generally derived from acute aquatic life criteria, and average monthly limits

are generally derived from chronic aquatic life criteria.” 2009 Permit Modification

Statement of Basis at 5 (hereinafter “Al SOB”).

river are upstream POTWs” and the District is the dominant one. Fact

Sheet at 8. The Region additionally considered the existence of other

sources in its analysis of dilution during wet weather conditions. RTC

at 64. The Board also rejects the District’s contention that the Region’s

analysis “puts the entire burden of coliform compliance on the District.”

Dist. Supp. Pet. at 42. The Permit’s conditions only require the District

to control the fecal coliform discharged from the District’s outfall; the

Permit does not require the District to limit or control fecal coliform in

the background River flow or from any source other than the District’s

own discharges. Accordingly, the District has failed to show clear error

or abuse of discretion in the Region’s determination that the District’s

fecal coliform discharges have the reasonable potential to cause or

contribute to violations of Rhode Island’s water quality standards or the

Region’s establishment of the Permit’s numeric limit for fecal coliform.

G. The Permit’s Aluminum Limit

The Permit, when initially issued, did not include a limit for total

aluminum, and Trout Unlimited filed a petition challenging the absence

of an aluminum limit. In its response brief, the Region stated that it

“plans to issue a draft permit modification to establish an aluminum

effluent limit,” Region’s Resp. Br. at 133, and on April 15, 2009, the

Region issued a Permit modification setting the Permit’s aluminum limit

at 87 :g/l. The Region explained that this limit is required by

Massachusetts’ water quality standards and EPA’s chronic aluminum 57

criteria recommended in Office of Water, U.S. EPA, National

Recommended Water Quality Criteria: 2002, EPA 822-R-02-047 (Nov.

2002) (“EPA’s 2002 National Criteria”). In essence, the Region

determined that the Permit’s limit must be set at the level of EPA’s

aluminum criterion because Massachusetts’ regulations require use of
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 Finally, the District arguesthat theRegion’s decision to modify the District’s 58

Permit just six months after issuing the Permit raises public policy questions that the

Board should review. District’s Al. Pet. at 14-16. The District argues that the Region has

(continued...)

EPA’s criterion and both the background River flow and the District’s

discharges exceed the criterion level, thus indicating that any discharge

by the Region will contribute to the existing violation of the criterion.

Al SOB at 7-8; 2009 Permit Modification Response to Comments

(“Al RTC”) at 5-6.

On May 20, 2009, the District filed a petition seeking review of

the aluminum limit. See Petition for Review of Revised Permit

Conditions and Motion of the Permittee, Upper Blackstone Water

Pollution Abatement District, to Consolidate this Petition with Others

Related to this Permit, NPDES Appeal No. 08-11 (May 20, 2009) (herein

“Dist. Al Pet.”). By order dated August 6, 2009, the Board consolidated

the District’s petition for review of the Permit modification with the

District’s petition for review of other conditions of the Permit. 

The District challenges both the water quality criterion the

Region applied in its analysis and the data the Region used in

determining that the District’s discharges have a reasonable potential to

cause violations of that criterion. The District argues that correcting the

criterion and correcting what it alleges are data errors demonstrate that

the District’s aluminum discharges do not cause, contribute to, or have

the reasonable potential to cause violations of Massachusetts water

quality standards and that the particular numeric limit the Region

selected, 87 :g/l, is too stringent. District’s Al. Pet. at 4. The District

argues that it was clear error for the Region to apply an aluminum

criterion drawn from EPA’s 2002 National Criteria, and the District

contends that the Region, instead, should develope a site-specific

criterion based on data regarding “naturally occurring background

concentrations” in the River, which the District argues would produce a

criterion higher than the aluminum concentration found in the District’s

discharges. Dist. Al Pet. at 2-3. The District, argues that its discharges 58
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(...continued) 58

changed its position merely in response to Trout Unlimited’s original petition for review

and not based on any new or different scientific analysis. Id. The District further

contends that the Region’s sudden change frustrates the District’s efforts at capital

planning and restricts the District’s options for controlling phosphorus. Id.

are consistently below the background level and, thus, would not violate

a criterion reflecting the background concentration and no limit would

be required. Alternatively, the District argues that the limit should be set

at the higher background level. These arguments, however, fail to show

that the Region committed clear error or abused its discretion.

Massachusetts water quality standards require “additional

minimum criteria” as follows:

All surface waters shall be free from pollutants in

concentrations or combinations that are toxic to humans,

aquatic life or wildlife. For pollutants not otherwise

listed in 314 CMR § 4.00, the National Recommended

Water Quality Criteria: 2002, EPA 822R-02-047,

November 2002 published by EPA pursuant to Section

304(a) of the Federal Water Pollution Control Act, are

the allowable receiving water concentrations for the

affected waters, unless the Department either establishes

a site specific criterion or determines that naturally

occurring background concentrations are higher.

314 C.M.R. § 4.05(5)(e). In responding to public comments, the Region

explained that “[a]luminum has not been ‘otherwise listed’ in 314 CMR

§ 4.00 and no site-specific criteria for the Blackstone River have been

developed for this pollutant.” Al RTC at 6. The District does not

dispute this conclusion; instead, the District argues that, while the the

Massachusetts’ regulations generally require application of EPA’s

national criteria, there is an exception to this requirement applicable

where the “naturally occurring background concentrations are higher”
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and, in such cases, “the background concentration of aluminum becomes

the relevant water quality standard.” Dist. Al Pet. at 3.

The Region addressed this contention by stating in its response

to comments that the District had not shown that elevated background

aluminum levelsin the Blackstone River are, in fact, naturally occurring.

Specifically, the Region explained as follows:

[W]e also do not see any demonstration in the graph (or

elsewhere in the comments) that the aluminum levels are

naturally occurring. The presentation does not factor in,

or even acknowledge the multitude of industrial and

commercial indirect dischargers to the wastewater

system and the addition of aluminum by the City of

Worcester, UBWPAD’s largest member community, as

part of its drinking water treatment process. Similarly,

given the highly urbanized nature of the watershed above

the discharge, including numerous industrial and

commercial sites with storm water runoff and some with

direct wastewater discharges to the river, including the

City of Worcester discharging aluminum to the receiving

water as part of the water supply treatment process, the

commenter has not made a sufficient case that the

ambient levels are naturally occurring.

Al RTC at 3. 

On appeal, the District attempts to refute the Region’s

determination that the District had “not made a sufficient case that the

ambient levels are naturally occurring” by citing data that is not part of

the administrative record. See Dist. Al Pet. at 9-14. Specifically, the

District cites data collected by the Worcester Water Department from a

point between the Kendall Reservoir and the Holden Reservoir. Id.

at 11-12. The District’s arguments based on this information introduced

for the first time on appeal must be rejected. The Region was required

to make its decision on the administrative record established pursuant to
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40 C.F.R. § 124.18, and whether the Region committed clear error is

measured by the record that was before the Region at the time it made its

decision. Deseret Power, 14 E.A.D. at 7 n.3; In re Kendall New

Century, 11 E.A.D. 40, 55 (EAB 2003); In re Steel Dynamics, 9 E.A.D.

165, 230 (EAB 2001); In re Maui Elec. Co, 8 E.A.D. 1, 9-10 (EAB

1998). 

The District’s arguments based on the data and analysis that is

included in the administrative record do not show clear error in the

Region’s determination. The District characterizes the record data as

evidencing a “correlation” between elevated aluminum concentrations

in the District’s discharges and elevated aluminum concentrations in the

background River flow. Dist. Al Pet. at 10; Letter from Robert D. Cox,

Jr. Attorney for the District to Meredith Timony, U.S. EPA Region 1

NPDES Unit at 3 (Feb. 27, 2009) (hereinafter “Dist. Al Comment

Letter”). TheDistrict has inappropriately presented the data, which were

collected on specific days separated by many months, on a line graph,

leaving the false impression of continuity between the data points.

Properly analyzed as independent data points, the data reveal that on

some days there were narrow differences and on other days a wide

difference between the concentrations in the River and in the District’s

discharges. Thus, the Region correctly rejected the District’s assertion,

stating in its response to comments that the District’s graph does not

show a direct correlation between the aluminum concentration in the

District’s discharge and the concentration in the River flow. Al RTC

at 3. Moreover, the Region also correctly stated in its response to

comments that the identification of a correlation, in any event, does not

speak to the question whether the background aluminum concentration

is “naturally occurring” rather than caused by the variety of

anthropogenic sources the Region mentioned in its response to

comments. Al RTC at 3. The District’s recitation on appeal of its

assertion that there is a direct correlation is simply not sufficient to

demonstrate that the Region clearly erred in rejecting the District’s

“naturally occurring” theory by observing that the data do not show a

direct correlation and do not address the many anthropogenic sources in
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 Rhode Island’s water quality standard for aluminum, which is applicable to 59

the Blackstone River’s lower reaches, also is 87 :g/l. Rhode Island Water Quality

Regulations, Rule 8, App. B.

the watershed that may be responsible for changes in the background

aluminum concentration.

The one study the District attached to its comment letter merely

mentioned acidic precipitation as a possible cause of aluminum found in

rivers and streams in the northeast – it does not speak either to whether

acidic precipitation is “naturally occurring” rather than caused by human

activity or, more importantly, whether acidic precipitation causes the

aluminum concentrations in the Blackstone River rather than the

anthropogenic sources the Region mentioned in its response to

comments. Compare Al RTC at 3 with Monette, M.Y. & McCormick,

S.D., Impacts of Short-term Acid and Aluminum Exposure on Atlantic

Salmon (Salmo Salar) Physiology: a Direct Comparison of Parr and

Smolts, 86 Aquatic Toxicology 216-226 (2008). Because the record

evidence the District cites does not refute the Region’s response to

comments, the Board must reject the District’s contention that the

Region clearly erred in concluding that it must apply EPA’s nationally

recommended criterion of 87 ug/l for aluminum in the Blackstone

River.

59

To determine whether the District’s discharges may exceed the

criterion of 87 ug/l, and therefore, have the potential to cause a violation

of Massachusetts’ water quality standards, EPA’s guidance recommends

that the permit issuer use the maximum concentration of the pollutant

measured in the discharger’s effluent. Office of Water, U.S. EPA, U.S.

EPA NPDES Permit Writers' Manual, ch. 6.3.2 (Dec. 1996). Here, the

Region determined that “the concentration of aluminum in the effluent

exceeded the chronic criterion” on numerous occasions and “[t]herefore,

there is reasonable potential for the discharge to cause or contribute to

an excursion above the criteria in the downstream receiving water even

if the ambient concentration were assumed to be zero.” Al SOB at 7.

The Region also concluded that the average concentration of aluminum
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 Specifically, the District argues that the Region included in its averages data 60

taken when the river was flowing at a high level and excluded data from actual low-flow

periods falling outside of typical low flow months. Dist. Al Pet. at 4-6. The District also

argues that the Region’s analysis inappropriately used in its averaging the method

detection limit for some of the data points of 100 ug/l, thereby increasing the average.

Id. at 7-9. The Region adequately addressed these comments in the Region’s response

to public comments. Al RTC at 2-4. On appeal, the District raises a new argument that

one data point is an “outlier” reflecting a “plant upset” and thus not representative. Dist.

Al Pet. at 6. Notably, the District included this data point in its own calculation of its

average aluminum concentration as presented in the District’s public comment letter.

Dist. Al Comment Letter at 3, tbl. 1. Because the District did not raise its issues and

arguments concerning this data point during the public comment period and those

arguments were reasonably ascertainable at that time, the District is barred from raising

its challenges for the first time on appeal. Moreover, the District has not provided

evidence demonstrating that the conditions resulting in this “outlier” data point will not

reoccur.

in the District’s effluent during typical low flow periods was 127 ug/l,

well above the criterion of 87 ug/l, also indicating a reasonable potential

for the District’s discharges to cause or contribute to violations of the

criterion. Id. The District challenges this determination on appeal by

identifying three types of data errors it contends establish clear error and

require remand. Dist. Al Pet. at 4-13. Notably, however, the District

does not challenge the Region’s determination that the data demonstrate

that the Region’s discharges exceeded the 87 ug/l criterion on some

occasions; instead, the District only argues that its average discharge

concentration is lower than 127 ug/l. Id. The Board does not need to

reach the specific arguments the District makes on appeal – it is 60

sufficient that the Region correctly observed that the District’s

discharges have been measured exceeding the applicable 87 ug/l

criterion. This is sufficient to support the Region’s conclusion setting

the Permit limit at the level of the criterion consistent with EPA

guidance. Moreover, the District’s own calculation of its average

concentration as presented in the District’s public comments was 92 ug/l,

exceeding the criterion and justifying the Permit’s limit. Dist. Al

Comment Letter at 3, tbl. 1.
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For the foregoing reasons, the Board concludes no clear error in

the Region’s determination establishing the Permit’s total aluminum

limit at 87 ug/l.

H. The Various Metals Limits and Sampling and Monitoring

Requirements Are Appropriate

In a series of short sections beginning on page 51 and extending

to page 57 of its Supplemental Petition, the District raises a number of

separate issues. The Board rejects these issues. The District has not

shown that the issues were raised during the public comment period, or

the issues are not sufficiently specific, or lack record support, or District

failed to address the Region’s explanation of its decision and response

to comments.

Specifically, the District mentions total residual chlorine and

states the District’s understanding of the Permit’s sampling

requirements, but the District does not identify any specific error or

problem with the Permit’s terms. Dist. Supp. Pet. at 54. Accordingly,

the District’s statements regarding total residual chlorine do not appear

to raise an issue requesting Board review and therefore review of the

total residual chlorine Permit conditions are denied. 

The District states that it is concerned about what it refers to as

the Permit’s rigid schedule for WET testing and the District states that

“strict adherence to this schedule may prove difficult or impossible at

times” and the District requests that language be added to the Permit to

address its concern. Dist. Supp. Pet. at 51-52. The District, however,

fails to explain why the following statement in the Permit is clearly

erroneous or an abuse of discretion: “[o]ccasional deviations from the

routine sampling program are allowed, but the reason for the deviation

shall be documented in correspondence appended to the applicable

discharge monitoring report.” Permit at 6. Accordingly, review of the

WET test schedule is denied.
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The District objects to the wet weather fecal coliform sampling

requirements on the grounds of the difficulty in performing the EPAapproved sampling protocol. Dist. Supp. Pet. at 51-52. The District

observes that the EPA-approved protocol requires trained laboratory

personnel and that another test available on the market can be performed

by the District’s staff. Id. The District’s argument, however, fails to

address the regulatory requirement that monitoring be conducted using

EPA-approved methods. See 40 C.F.R. § 122.44(i)(1)(iv). Accordingly,

the District has failed to demonstrate clear error in the monitoring

requirements the Region included in the Permit and review of this

requirement is denied.

The District argues that the ammonia limit should not be stated

both as a mass limit and also as a concentration limit. Dist. Supp. Pet.

at 53-54. The District demonstrates that during the public comment

period it asked for clarification regarding which limit would be

controlling, but the District does not demonstrate that it objected to the

limit expressed both as a mass limit and as a concentration limit. The

regulations authorize the Region to impose limits stated both as mass

limit and simultaneously as a concentration limit. 40 C.F.R.

§ 122.45(f)(2). In addition, the Permit’s limit for ammonia is identical

to the limit in the District’s previous 2001 permit. Fact Sheet at 10-11.

Because this issue was not preserved for appeal by being raised during

the public comment period and since it was clearly ascertainable at that

time, review is denied. See Part II.E.2.a above (discussing requirements

for issues and arguments to be raised on appeal).

The District objects that the copper limit is based on dilution at

the point of discharge, but should instead be based on dilution at the

Rhode Island border. Dist. Supp. Pet. at 54-55. The District has made

no demonstration that this issue was raised during the public comment

period or demonstrated that this issue was not ascertainable during the

public comment period. The District only demonstrated that it

commented during the public comment period that the copper limit

should be based on the Massachusetts site-specific water quality

standard. Id. The final permit limit is the same as proposed in the draft
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permit, and the Region explained why adjusting the copper limit based

on the Massachusetts site-specific criteria would not ensure compliance

with Rhode Island’s water quality standards. RTC at 13-14.

Accordingly, review of the copper limit is denied. See Part II.E.2.a

above (discussing requirements for issues and arguments to be raised on

appeal).

The District argues that the Permit should not impose a cadmium

effluent limit that is below the levels that existing technology can detect.

Dist. Supp. Pet. at 55. Although the District demonstrates that New

England Plating’s public comments noted that the cadmium limit is

below the current technology detection limit, the District has not

demonstrated that any public comments requested that the Permit’s

cadmium limit be made less stringent for this or any other reason.

Accordingly, this issue was not preserved for appeal and review of the

cadmium limit is denied. See Part II.E.2.a above (discussing

requirements for issues and arguments to be raised on appeal).

The District objects to the Permit’s new monitoring requirements

for lead. Dist. Supp. Pet. at 56. The District notes that the lead

monitoring requirements were not included in the draft permit and,

therefore, the District may raise issues regarding this requirement even

if it did not raise them during the public comment period. Id. The

District argues, without providing any evidence support, that its lead

discharge levels are “consistently below levels of concern” and therefore

monitoring is not necessary. Id. The Region fully explained in its

response to comments why it determined that monitoring lead is

necessary. RTC at 14-15. Specifically, the Region explained that

although the District’s lead discharges have been below the detection

levels of the test the District has used (ranging from 5-10 ug/l), these

“detection levels are higher than the ambient criteria values.” Id.

Specifically, Massachusetts criterion for lead is 1.8 ug/l. 31 C.M.R.

§ 405(5)(e). Because the District has provided no evidence to refute the

Region’s rationale articulated in its response to comments, The District’s

petition lacks sufficient support, and review of the lead monitoring

requirement is denied.
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The District objects to the Permit’s monitoring requirement for

nickel. Dist. Supp. Pet. at 56. The District notes that the nickel

monitoring requirements were not included in the draft permit and,

therefore, the District may raise issues regarding this requirement even

if it did not raise them during the public comment period. Id. The

District argues, without providing any evidence support, that its nickel

discharge levels are “consistently below levels of concern” and therefore

monitoring is not necessary. Id. The District, however, does not address

the Region’s statement in its response to comments that the monitoring

requirement for nickel only requires the District to separately include

nickel in its monitoring reports showing the results of nickel monitoring

otherwise already required as part of the WET tests. See RTC at 15.

The District has not demonstrated any clear error or abuse of discretion

in the Region’s decision to require separate reporting of monitoring

already conducted as part of the WET test and, accordingly, review of

this issue is denied.

The District also objects that the Permit condition requiring the

District to complete an infiltration and inflow control plan within six

months. Dist. Supp. Pet. at 57. The District, however, has failed to

provide any evidence supporting its objection that six months is an

inadequate time. Nevertheless, because this condition applies both to the

District and to the co-permittees and because the Board is remanding the

Permit’s co-permittee condition, the Board remands this requirement for

preparation of an inflow and infiltration plan as it relates to the copermittees, and the Board deniesreview of this provision with respect to

the District, which remains obligated to control inflow and infiltration.

The Region explained that these operation and maintenance requirements

are authorized by 40 C.F.R. § 122.41(e), (d), and that the Permit’s

specific inflow and infiltration conditions are required by Massachusetts’

state certification issued under section 401 of the CWA. Fact Sheet

at 18-19.

 
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I. The Region Did Not Abuse its Discretion in Denying Compliance

Schedules for the Nitrogen and Phosphorus Limits to be Included as

Permit Conditions

The District argues that the Region clearly erred or abused its

discretion in issuing the Permit without providing a schedule for delayed

compliance with the total phosphorus and total nitrogen limits. Dist.

Supp. Pet. at 44-51. The District argues that the Region clearly erred in

interpreting Rhode Island law and abused its discretion under

Massachusetts law. Id. The District acknowledges that the federal

NPDES permitting regulations, 40 C.F.R. § 122.47(a), grant the permit

issuer discretion to include a compliance schedule in a permit only where

the applicable state regulations authorize the permit to contain a schedule

for compliance. Id. at 48. The District argues that Massachusetts law

governing the Permit’s phosphorus limit grants the permit issuer

discretion to include a compliance schedule and that the Region abused

its discretion in denying a compliance schedule in the present case where

it is clear that the District cannot immediately comply with the Permit’s

total phosphorus limit. Id. at 45-46. The District also argues that the

Region clearly erred in concluding that Rhode Island law governing the

Permit’stotal nitrogen limit does not authorize a compliance schedule to

be included in the permit. Id. at 46-48. The District does acknowledge

that Rhode Island has interpreted its law as not authorizing compliance

schedules, but the District argues that the Region should ignore Rhode

Island’s interpretation and, instead, should adopt the interpretation of

Rhode Island law the District offers in its supplemental petition. Id.

Contrary to the District’s contention, the Region did not err in

following Rhode Island’s interpretation of its regulations governing

compliance schedules. A Region's authority to delay compliance with

state water quality standards through a compliance schedule made part

of an EPA-issued NPDES permit is limited to those circumstances in

which the applicable state's water quality standards or its implementing

regulations “can be fairly construed as authorizing a schedule of

compliance.” In re Star-Kist Caribe, Inc., 3 E.A.D. 172, 175 (Adm'r

1990), modification denied, 4 E.A.D. 33, 34 (EAB 1992); In re City of
UPPER BLACKSTONE WATER POLLUTION 

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 The Board rejects the District’s contention that Rhode Island’s law governing 61

compliance schedules is procedural and not part of Rhode Island’s water quality

standards. See Dist. Supp. Pet. at 64-65.

Ames, Iowa, 6 E.A.D. 374, 380 (EAB 1996). The Administrator

explained that “Congress intended the States, not EPA, to become the

proper authorities to define appropriate deadlines for complying with

their own State law requirements. Just how stringent such limitations

are, or whether limited forms of relief such as variances, mixing zones,

and compliance schedules should be granted are purely matters of State

law, which EPA has no authority to override.” Star-Kist, 3 E.A.D.

at 182.

Absent authority for delay granted by the applicable state water

quality standard, the NPDES permit must require compliance with state

water quality standards immediately upon issuance. 40 C.F.R.

§122.4(d); see In re J & L Specialty Prods. Corp., 5 E.A.D. 333, 344

(EAB 1994). “[T]he only instance in which the permit may lawfully

authorize a permittee to delay compliance after July 1, 1977, pursuant to

a schedule of compliance, is when the water quality standard itself (or

the State's implementing regulations) can be fairly construed as

authorizing a schedule of compliance.” Star-Kist, 3 E.A.D. at 175.61

Accordingly, in this case, the Region's capacity to provide a compliance

schedule for total nitrogen and total phosphorus discharge limits is

circumscribed by what Rhode Island’s and Massachusetts’ water quality

standards allow. Here, the Region explained as follows:

Rhode Island’s Water Quality Standards do not include

provisions allowing for schedules in permits; Rhode

Island’s practice is to incorporate schedules in an

Administrative Compliance Order or a Consent

Agreement. Because the nitrogen limit in the UBWPAD

permit is based on Rhode Island’s standards, EPA is not

including a compliance schedule in the permit.
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RTC at 58. The District does not dispute that Rhode Island’s

interpretation and practice incorporates compliance schedules, not in

permits, but instead in compliance orders or consent agreements. See

RTC at 58. There is no clear error in the Region’s statement – the Rhode

Island state regulation the District cites does not specifically mention

compliance schedules for water quality-based effluent limits and it does

not authorize extending compliance beyond the statutory deadline. See

12-190-001 R.I. Code R. §§ 20.01, .02(a).

The Region did note that Massachusetts law applicable to the

Permit’s total phosphorus limit does authorize, at the permit issuer’s

discretion, a compliance schedule to be included in the permit.

However, the Region explained that “[i]n this matter, there are many

overlapping issues related to the planning, design and construction of

facilities to meet the limits for phosphorus and nitrogen. * * * In light of

these overlapping issues and the fact that Rhode Island standards do not

include provisions allowing for schedules, EPA intends to issue a

compliance schedule to meet both the phosphorus and nitrogen limits in

a separate administrative order.” RTC at 19. There is no clear error or

abuse of discretion in this approach.

J. The Region Appropriately Considered Environmental Justice Issues

The District argues that the Region committed “clear error in not

adhering to Executive Order 12898 and the local implementing policy

and action plan.” Dist. Supp. Pet. at 68. The District argues that the

Region failed to comply with the President’s Executive Order on

environmental justice and with the Regional environmental justice action

plan. The District contends that these directives provide for additional

notice or hearing opportunity to environmental justice populations that

may “bear the burden of increased rates that will be necessary to fund the

facility upgrades required by the Permit.” Dist. Supp. Pet. at 66. 
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105

The District’s arguments are unpersuasive. Although

environmental justice issues are considered in permitting proceedings,

and the Board has remanded a permit for further environmental justice

analysis, In re Knauf Fiber Glass, GmbH, 8 E.A.D. 121, 174-75 (EAB

1999) (remand to provide an environmental justice analysis to

supplement the Clean Air Act permitting record); see also In re Shell

Offshore, Inc., OCS Appeal Nos. 07-01 & 07-02 (EAB Sept. 14, 2007);

In re AES Puerto Rico, L.P., 8 E.A.D. 324, 351 (EAB 1999), aff’d sub

nom Sur Contra La Contaminacion v. EPA, 202 F.3d 443 (1stCir. 2000),

nevertheless, the District is not correct in its characterization of the

Region’s environmental justice obligation. Executive Order 12898

instructs federal agencies to address, as appropriate, “disproportionately

high and adverse human health or environmental effects of [their]

programs, policies, and activities on minority and low-income

populations * * *.” Federal Actions to Address Environmental Justice

in Minority Populations and Low-Income Populations, Exec. Order

12898, 59 Fed. Reg. 7629 (Feb. 11, 1994). The Executive Order, thus,

speaks to human health and environmental effects; it does not require

federal agencies to consider issues regarding cost or rate changes as the

District argues. Here, the District’s arguments on appeal do not allege

any facts showing a “disproprotionately high” impact on environmental

justice populations, and the District’s arguments do not allege “adverse

human health or environmental effects” on those populations. Thus, the

District has not raised an environmental justice issue cognizable under

Executive Order 12898. The District’s arguments also do not address the

Region’s response to comments regarding its consideration of

environmental justice issues. See RTC at 23, 113-14. Accordingly,

review is denied.

III. CONCLUSION

Forthe reasons discussed below, the Board remands the Permit’s

provisions governing the requirements imposed upon co-permittees. The

Board concludes the Region made no clear error with respect to all other

issues raised on appeal. The Board also concludes no issues involving

either the Region’s exercise of discretion or an important policy
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106

consideration that warrant a change to the conditions of the permit. An

appeal of the Region’s decision on remand is required to exhaust

administrative remedies. 40 C.F.R. § 124.19(f)(1)(iii).

So Ordered.
CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing Order Denying Review in Part and 

Remanding in Part in the matter ofUpper Blackstone Water Pollution Abatement District, 

NPDES Appeal Nos. 08-11 to 08-18 & 09-06, were sent to the following persons in the manner 

indicated: 

Pouch Mail: 

Karen A. McQuire 

Amanda J. Helwig 

U.S. EPA, Region 1 

1 Congress Street, Suite 1100 

Boston, MA 02114-2023 

U.S. First Class Mail: 

John Davenport 


Conservation Law Foundation 


62 Summer Street 


Boston, MA 02110-1016 


J. Bradford Lange 

Sewer Commission 

Town of Millbury, Massachusetts 

Municipal Office Building 

127 Elm Street 

Millbury, MA 01527 

David M. Moore 

City Solicitor, City of Worcester 

City Hall 

455 Main Street 

Worcester, MA 01608 

Nathan A. Stokes 


Bares & Thornburg, LLP 


750 17th Street, NW 


Suite 900 


Washington, DC 20006 


JamesShuris 

Director ofPublic Works 

Town ofHolden, Massachusetts 

1196 Main Street 

Holden, MA 01520 

Donald G. Manseau 

Cherry Valley Sewer District 

P.O. Box 476 

Leicester, MA 01524 

Susan B. Forcier 

Department of Env. Management 

Office ofLegal Services 

235 Promenade Street, 4th Floor 

Providence, RI 02908-5767 

Karen L. Crocker 

MA Dept. ofEnvironmental Protection 

Office of General Counsel 

One Winter Street 

Boston, MA 02108 
Christopher M. Kilian 

Conservation Law Foundation 

15 East State Street, Suite 4 

Montpelier, VT 05602 

Northern RI Chapter 737 Trout Unlimited 

C/o Roland C. Gauvin 

2208 Mendon Road 

. Cumberland, RI 02864 

Dated: MAY 28 2010 

David Mears 

Environmental and Natural Resources 

Law Clinic 

Vermont Law School 

P.O. Box 96, Chelsea Street 

South Royalton, VT 05068 

Annette Duncan 

Secretary .