RECEIVEDCLERK'S

OFFICE

APR 2

1 2006

DES PLAINES RIVER WATERSHED ALLIANCE,

)

STATE OF

ILLINOIS

LIVABLE COMMUNITIES ALLIANCE,

)

Pollution Control Board

PRAIRIE RIVERS NETWORK, and SIERRA CLUB,

)

Petitioners,

)

v.

)

PCB 04-88

(NPDES Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY and VILLAGE OF NEW LENOX

)

Respondents.

)

NOTICE OF FILING

PLEASE TAKE NOTICE that the Des Plaines River Watershed Alliance, the Livable

Communities Alliance, Prairie Rivers Network, and the Sierra Club have filed the attached

PETITIONERS' POST HEARING MEMORANDUM

.

DATED

: April 21, 2006

Environmental Law and Policy Center

35 E. Wacker Drive, Suite 1300

Chicago, Illinois 60601

312-795-3707

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Albert F . Ettinger (Re No

. 3125045)

Counsel for Des Plaines River Watershed Alliance, Livable

Communities Alliance, Prairie Rivers Network and Sierra

Club

---

RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

APR 2

1 2006

DES PLAINES RIVER WATERSHED ALLIANCE,

)

LIVABLE

COMMUNITIES ALLIANCE,

STATE OF ILLINOIS

)

Pollution Control Board

PRAIRIE RIVERS NETWORK, and SIERRA CLUB,

)

Petitioners,

)

v

.

)

PCB 04-88

(NPDES Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY and VILLAGE OF NEW LENOX

)

Respondents .

)

PETITIONERS' POST HEARING MEMORANDUM

DATED

: April 21, 2006

Environmental Law and Policy Center

35 E. Wacker Dr . Suite 1300

Chicago, Illinois 60601

312 795 3707

---

TABLE OF CONTENTS

.I

Page

THE RELEVANT FACTS

4

A.

Hickory Creek

4

B.

Information IEPA had on Hickory Creek and the New Lenox discharge

before it gave public notice of the draft permit

5

C.

Information Learned and Issues Raised during the Public Comment Period 9

Comments requesting that increased pollution be minimized

10

2 .

Comments requesting that IEPA place limits in the permit to

prevent violations of water quality standards 10

D

.

The Final Permit and Responsiveness Document

14

1 .

IEPA declined to minimize pollution

14

2.

IEPA did not consider limits requested in the permit to prevent

violation of water quality standards

15

3 .

IEPA did not require studies that protect existing conditions

17

II .

The Standard and Scope of Review

18

A .

Standard of review and burden of proof

18

B .

Only evidence in the record at the time IEPA issued the permit is relevant

and the permit may only be upheld on the basis of theories and facts

relied on by the Agency

20

Ill .

The Relevant Laws and Regulations Regarding NPDES Permits 23

A .

Illinois antidegradation regulations require that a permit for a new or

increased discharge be granted only if the increase is necessary to

accommodate important economic or social development and all

reasonable measures to avoid or minimize the extent of the new

pollution are incorporated into the permit

23

B .

A NPDES permit must contain limits that ensure that the total discharges

allowed under the permit will not cause or contribute to violations of numeric

or narrative water quality standards

25

---

C.

Illinois antidegradation regulations require that a permit for a new or

increased discharge only be granted if the Agency assures that all

existing uses will be fully protected

29

IV .

The Permit As Issued Violates The Act And The Board Rules In Numerous

Respects

29

A.

The Permit as issued violates the requirement that the Agency must

assure that all reasonable means be used to minimize new or increased

pollution because steps to remove phosphorus and nitrogen were not

considered

29

The Agency should have required reasonable phosphorus removal

29

2 .

The Agency

should have considered reasonable nitrogen

removal

33

B .

The Agency (lid not assure that the new loading allowed by the permit

would not result in violation of water quality standards and did not

ensure that the total discharge allow by the permit would not do so

33

Compliance with the narrative standard on offensive conditions

was not ensured

33

2.

The permit does not assure that the increased discharge would not

result in violations of the dissolved oxygen or pH standards and

does not ensure that the total New Lenox discharge will not cause

or contribute to a violation of those standards

36

3 .

IEPA must further consider whether a permit limit on copper is

needed

37

C.

The Permit does not assure that existing uses will be protected 39

CONCLUSION

40

---

TABLE OF AUTHORITIES

Page

Cases :

American Iron and Steel Institute v. EPA,

115 F.3d 979 (D.C. Cir. 1997) 39

American Paper Institute v

. U.S. Environmental Protection Agency, 996 F.2d 346

(D.C . Cir. 1993)

28

Arkansas v

. Oklahoma, 503 U .S . 91 (1992)

28

AT&T Corp v. Iowa Utilities Bd.,

525 U.S. 366

30

Chatham Corp. v

. Dann Ins ., 351 III . App . 3d 353, 812 N

.E.2d 483 (1st Dist. 2004) 30

City ofKankakee v . County of Kankakee, PCB

No . 03-125, 2003 III . Env

. LEXIS 462,

at *34 (Aug . 7, 2003)

19

Contra Bradd v. Illinois EPA, PCB No

. 90-173, 1991 111 . Env. Lexis 367 at *34 34

Corey 11 v

. Board ofEducation of the City of Chicago,

995 F . Stipp. 900 (N .D. III . 1998) 27

Defenders o/ Wildlife v

. U.S. EPA, 420 F.3d 946 (9th Cir. 2005)

27

Des Plumes River Watershed Alliance v

. Illinois EPA, PCB

04-88, 2005 111 . Fnv. Lexis

622 at * 15 (Nov . 17, 2005)

19,19,20

District 11991' v

. National Labor Relations Bd ., 864 F .2d 1096 (3"1

Cir. 1989) 28

EPA v

. Pollution Control Board, 86111

. 2d 390 (1981)

39

Federal Power Comm . v. Texaco, 417 U

.S. 380 (1974)

21

Finnerty v

. Personnel Rd. of the City o/fChicago, 303 111

. App. 3d 1, 707 N.E.2d 600

(1st Dist. 1999)

19

Harris v

. Cropmate Co., 302 Ill . App

. 3d 364, 706 N .E .2d 55 (4" Dist

. 1999) 22

Hazardous Waste Treatment Council v

. U.S. EPA, 886 F.2d

355 (D .C. Cir. 1989) 24

Hofman v

. Lyon Metal Products, 217 111. App

. 3d 490, 577 N .E.2d

514 (2d Dist . 1991) 32

Illinois Ayers Oil Co

. v. Illinois EPA, PCB No

. 03-214, 2004 111 . Env . Lexis 195 at *41 34

iii

---

Illinois E.P.A

. v

. Pollution Control Board,

1 15 Ill . 2d 65 (1986) 35

In re City of Marlborough, Massachusetts Easterly Wastewater Treatment Facility,

NPDES Appeal No . 04-113, 2005 EPA App . Lexis 14 at *38 (EAB, Aug . 11, 2005) 32,32,35

In re Washington Aqueduct Water Supply System, 11 E.A .D . 565, 2004 EPA App .

LEXIS 28, *55 (EAB 2004)

21,39

In the Matter of

: Amendments to the Water Pollution Regulations, No.R83-12, p . 4,

1979 III . Env. Lexis 312 (Feb . 15, 1979)

32

In the Matter of Site-Specific Exception to Effluent Standards for the Greater

Peoria Sanitary and Sewerage Disposal District,

No . R87-21, 1988 III . Env. Lexis

470 at *22 (Oct . 6, 1988)

25,25,26

In the Matter of

Revision to Antidegradation Rules, No. R .01-13, 2001 III

. Env. Lexis

316 at *31 (June 21, 2001)

33

In the Matter of Site-.Specific Phosphorus Limitation for the City

ofShel(yville,

R 1983-12, 1984 111

. Fnv

. Lexis 129 (Dec

. 20, 1984)

28,28,32

In the Matter

of Water Quality Standards Revisions, No . R71-14 (PCB March 7, 1972) 25

Mississippi Sierra Club v . Mississippi Dept. ofEnv'tal Quality, 819 So

. 2(1515, 521-23

(Miss . 2002)

31

Pease v

. Illinois

EPA, PCB No . 95-118, 1995 III . Env. Lexis 739 at *41 39

Permatreat ofIllinois v. Illinois EPA, PCB No . 93-159, 1993 Ill

. Env. Lexis 1513

at * 18

36,36,39

Prairie Rivers Network v . Illinois Pollution Control Board,

335 111 . App . 3d 391,

781 N .E. 2d 372 (4'h Dist. 2002)

18

Reinhardt v. Board of F,duc

. ofAlton Community Unit Sch . Dist. No. Il,

61 111 . 2d 101 (11I . 1975)

22

Reservation Telephone Cooperative v

. Federal Communications Commission,

826 F

.2d 1129 (D

.C. Cir. 1987)

22

Ress v. Office of the State Comptroller, 329 III . App

. 3d 136, 768 N .E.2d 255

(I 't Dist . 2002)

30

Rite Aid, Inc. v. Houston, 171 F.3d 842 (3r° Cir. 1999)

24

iv

---

Saline

at *38

County

(May 6,

Landfill

2004) v

. Illinois EPA,

PCB No . 04-117, 2004 111

. Env. LEXIS 255,

19

Springwood Assoc . v. Lumpkin,

239 III . App. 3d 771, 606 N .F

.2d 255 (1992) 27

Tennessee Valley Authority v .

Hill, 437 U.S. 153 (1978)

27

Village o/ Wauconda v

. Illinois EPA, PCB No

. 81-17, 1981 III . Env. Lexis 266,

at *4 (May 1, 1981)

31

Statutes :

415

35

40

35

40

35

35

35

35

415

35

35

35

35

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ILLS

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302304304302304302166302302302.105.208.204.206.123.120.203.192.102.105

1, 2, 23, 24, 26,

26,

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29,

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26,3426,27,

21,

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3822

Other Authorities :

Interim Economic Guidance tor Water Quality Standards, U

.S . EPA (1995)- 31

v

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PETITIONERS' POST HEARING MEMORANDUM

Neither the applicant nor the Illinois Environmental Protection Agency ("IEPA" or

"Agency") did the necessary and legally-required studies to assure that Permit No

. IL0020559

only allow pollution that was necessary and environmentally benign

. As a result, the permit as

issued allows unnecessary new pollution and the continuation of existing pollution that is likely

to damage what was once one of Illinois' premier water bodies

. The record before the Agency

shows that the National Pollutant Discharge Elimination System ("NPDES") permit granted to

the Village of New Lenox violates Section 39 of the Illinois Environmental Protection Act, 415

ILCS § 5/39, and numerous different Board rules as to numerous independent pollutant

parameters

. The permit allowed New Lenox to continue its existing discharge to Hickory Creek

in Will County without increased controls despite evidence that the discharge was contributing to

violations of water quality standards

. The permit also allowed New Lenox to increase its

discharge from 1

.54 million gallons per day to 2

.516 million gallons per day without any permit

limits or other controls on nutrient discharges or copper

. The Des Plaines River Watershed

Alliance, the Livable Communities Alliance, Prairie Rivers Network, and the Sierra Club

(collectively, "Petitioners") properly raised the issues that are the subject of this appeal

.

The permit as issued violates five different regulatory requirements as to a number of

different parameters .

First, the permit as issued violates provisions of the Board's

antidegradation rules, 35 Ill. Adm

. Code § 302.105(c)(1) and (c)(2)(B)(iii), because it allows

pollution not shown to be necessary and IEPA failed to "assure" that measures were incorporated

into the permit to "minimize" pollution by failing to require or even seriously consider

:

a.

Phosphorus removal

1

---

b.

Nitrogen removal

Second, the permit as issued violates 35 Ill . Adm. Code § 302.105(c)(2)(B)(i)

because

IEPA failed to "assure" that the increased discharge would not cause or contribute to violation

of:

a.

the narrative standard against offensive conditions, 35 Ill

. Adm. Code § 302 .203

b

.

the dissolved oxygen standard, 35 Ill

. Adm. Code § 302 .206,

c.

the pH standard, 35 111

. Adm. Code § 302 .204, and

d .

the copper standard, 35 111 . Adm. Code § 302 .208(e).

Third, the permit as issued violates 35 111

. Adm. Code § 309.141(d) and federal

regulations incorporated by reference, 40 C

.F.R . §§ 122 .4(d), 122

.44(d)(1), because the permit

does not "ensure" that the total

discharge under the permit (the existing discharge plus the

increased discharge) will not cause or contribute to violation of the standards regarding offensive

conditions, dissolved oxygen, pH, and copper

. Also in violation of 35 III . Adm

. Code 142 the

Agency failed to "verify" that the total plant discharge will not violate the offensive conditions,

dissolved oxygen, pH and copper standards

.

Fourth, the permit as issued violates 35 111

. Adm. Code § 302

.105(c)(2)(B)(ii) because the

Agency did not "assure" that "all existing uses will be fully protected

."

Finally, the permit as issued violates the Environmental Protection Act because it was

issued although the applicant did not make the requisite showing that its discharge would not

cause or contribute to violation of the offensive conditions, dissolved oxygen, pH or copper

standards . See

415 ILCS § 5/39 (permit shall issue "upon proof by the applicant" that the facility

will not cause a violation)

. In fact, the data offered by the applicant showed that the discharge is

a major source of nutrients known to cause offensive algal blooms, low nighttime dissolved

2

---

oxygen levels and pH problems in water bodies

. The applicant's data also showed that there was

a potential to cause violation of the acute and chronic copper standards . i

The relevant facts and legal theories overlap with regard to many of these violations of

the Environmental Protection Act and the Board regulations and Petitioners will attempt to avoid

unnecessary repetition in the presentation of the facts and law . However, it must be emphasized

that the permit as issued violates the Act or Board rules in many independent ways

. As to some

of these violations, there is clear evidence in the record showing that the permit should not have

been issued and absolutely nothing in the record even superficially supporting IEPA's decision

to issue the permit . As to other violations, there are conclusory statements in the record that

would support issuance of the permit as written if the statements were supported by facts, but the

statements relied on by IEPA have no support in the record

. Under the law explained below, the

permit cannot be sustained as issued unless the Agency record, as presented in the

Responsiveness Summary, shows that the permit accords with every applicable regulation as to

every pollutant parameter .

If the Board rules that the permit as issued violates the Environmental Protection Act or

the Board rules in any of the ways asserted by Petitioners, the Board should remand the permit to

IEPA for reconsideration as to each violation found by the Board . This would not cause any

unusual hardship to New Lenox . On remand, IEPA should place economically reasonable limits

on phosphorus, consider requiring other steps to minimize pollution and consider further studies

1

Petitioners believe that the permit also violates 35 Ill . Adm. Code § 302 .105(c)(2)(B)(iii)

because IEPA did not properly consider land treatment and other alternatives that would have

directed the discharge away from Hickory Creek

. Given that the expanded plant is now on line

and the practical and political realities implied by that fact, it does not seem worthwhile now to

consider alternatives to discharges to Hickory Creek as to this permit although alternatives

should be considered in the future as plant treatment costs increase

.

3

---

or limits to ensure protection of water quality standards .

I.

THE RELEVANT FACTS

A .

Hickory Creek

Hickory Creek, a tributary of the Des Plaines River which flows in Will County, was

once known for its exceptionally high water quality and biological integrity

. Phillip Smith, a

scientist of the Illinois Natural History Survey wrote in 1971 that "Prairie and Jackson Creeks

have good species diversity, but Hickory Creek is the outstanding stream in the [Des Plaines

River] system and contains populations of such unusual species as the northern hogsucker,

rosyface shiner, and slender madtom ." (HR 115)

More recently, Hickory Creek has been rated a "C" stream under IEPA's Biological

Stream Characterization system

. (HR 5) Also, IEPA's 2002 list of impaired waters identified

Hickory Creek as having high levels of phosphorus and nitrogen because measurements of

phosphorus and nitrogen were at or above the 85`

h percentile of all measurements of those

pollutants in the state . (HR 5)2

Further, the U .S

. Geological Survey database shows that for the

period of 1992 to 1997 total phosphorus in Hickory Creek exceeded IEPA's value for listing a

pollutant as a potential cause of impairment for more than 20 percent of the samples

. The

phosphorus level in Hickory Creek often vastly exceeded U

. S. EPA's recommended phosphorus

criterion . (HR 67)

2

In the Illinois Water Quality Report 2004, Hickory Creek Segment GG02 is listed as impaired

with the potential causes of impairment being silver, nitrogen, pH, sedimentation/siltation, total

dissolved solids, chlorides, flow alterations, physical-habitat alterations, total fecal coliform

bacteria, total suspended solids

;-

excess algal growth, and total phosphorus

. It is also listed as

impaired in the draft 2006 Illinois Water Quality Report with potential causes being chloride,

habitat alterations, flow, sediment, silver, total dissolved solids, total suspended solids, zinc, total

nitrogen, total phosphorus, excess algae, and fecal coliform .

4

---

B.

Information IEPA had on Hickory Creek and the New Lenox discharge

before it gave public notice of the draft permit

IEPA had a variety of information about Hickory Creek and the proposed discharge when

it wrote the draft permit

. It had the general data on degradation of the creek discussed above

.

IEPA itself had not, however, done any recent detailed study of the creek

. The IEPA

Antidegradation Assessment (HR 5-7) states that "The most recent facility related stream survey

conducted by the Agency was on June 10, 1991

. The facility related stream survey is not

representative of the stream conditions that exist at this time, since the facility has been expanded

since the 1991 facility related stream survey was conducted ." (HR 5)

IEPA asked the applicant to perform a study of Hickory Creek

. (HR 660.5) A September

30, 2002 memo by IEPA's Robert Mosher describes the reason IEPA asked for the study

:

I'll try to state the purpose behind the New Lenox [Facility Related

Stream Survey] conducted by Earth Tech

. New Lenox STP is up

for an expansion

. Unfortunately, Hickory Creek is listed as an

impaired water under 303(d) (based on pretty old data) and some

would say that pollutant loadings should not be increased

. When

faced with this dilemma, we are without policy

. It seemed right at

the time to tell New Lenox to conduct a new [Facility Related

Stream Survey]

. If it was found that the existing discharge was not

a part of the 303(d) problem, then we could say that this issue

should not stop the expansion

. On the other hand, if they did

document a stream impact from the existing discharge we could

say that either an overloaded plant that could not meet standards

was to blame and therefore they should be allowed to expand, or,

the existing plan is meeting limits and yet the stream is still

impaired and therefore an expansion could just make things worse

.

Under this possibly flawed reasoning (its all we've got because

nobody seems to be able to scope this out any better than that) 2

out of 3 possible results allow the expansion to go as planned

. (HR

673)

To do the study, the New Lenox hired Earth Tech that sampled macroinvertebrates above

and below the New Lenox discharge point on August 20, 2002

. (HR 5, 513-20). Finding that

5

---

there was no "definitive" difference in the health of the macroinvertebrate community above and

below the plant, Earth Tech concluded that there "are likely no significant adverse effects to

Hickory Creek from the New Lenox STP effluent discharge ."3 (HR 514) Earth Tech also

concluded on page 3 of the study, without explanation, that "the invertebrate community will

likely not be affected by the proposed treatment plant expansions and additional effluent ." (HR

515).

The Hearing Record contains extensive criticisms by IEPA staff of the Earth Tech study .

(HR 537, 556-58, 561, 661-98) . A Sept . 24, 2002 internal IEPA email by IEPA biologist Howard

Essig states, "The macroinvertebrate memo prepared by Earth Tech is one of the poorest studies

I have seen in a while." This email also states, "Statements made by Earth Tech on page 3 of

their report are all without merit . They do not back up any of their statements with data . For

example they attribute differences in taxa between stations to variations in stream flow, dissolved

oxygen levels and habitat types- but they provided no stream flow or dissolved oxygen data ."

The email further states, "Earth Tech also indicated that the current baseflow of Hickory Creek is

adequate to dilute the volume discharged from the WWTP . They did not provide any flow data

on Hickory Creek or the New Lenox W WTP to back up this claim." (HR 666-67)

A September 24 email by IEPA biologist Roy Smogor explains that because the study did

3 In drawing this conclusion, Earth Tech did not consider whether the macroinvertebrate

community above the New Lenox plant was affected by discharges from Frankfort and other

pollution sources upstream of the New Lenox plant or whether, because water quality should

have been expected to improve as the distance from the Frankfort discharge grew, the

macroinverbrate community below the New Lenox plant should have been expected to be better

-than it was if the New Lenox plant was having no effect . In other words, the fact that there were

so many pollution tolerant species above and below the New Lenox plant may prove that

Hickory Creek is being injured above New Lenox by upstream pollution sources and is being

injured downstream from the New Lenox plant by the pollution that reaches those areas from the

sources above New Lenox reinforced by the pollution coming from the New Lenox plant

.

6

---

not properly compare similar types of habitats above and below the plant, the study could not be

fixed "without re-collecting the critters in ways that more appropriately address the objectives of

the study." This email goes on to conclude that "Fundamental shortcoming in the sampling

method used in this study prevent meaningful interpretation of the resulting MBI

[macroinvertebrate] scores ." (HR 665)

An Oct. 9, 2002 memorandum by Smogor summarizes the reviews by three IEPA

biologists (Essig, Smogor and Mark Joseph) of the Earth Tech study and recommends that the

study be conducted again . This memo states, "We find it difficult to judge the validity of the

analyses and conclusions because the study used different collection methods, different taxon-

tolerance values, and different criteria for interpreting MBI [macroinvertebrate] scores than those

typically used by Illinois EPA . In addition, the report does not contain enough specific

information on habitat, water chemistry, and flow

." The memo concludes, "Therefore we

recommend that Earth Tech conduct the survey again following the guidelines listed below

."

(HR 559-60).

A Nov

. 25, 2002 IEPA email by Howard Essig asks whether "New Lenox conducted

another study as Roy, Mark and I recommended" (HR 700) A Nov . 26, 2002 IEPA email by

Greg Good (HR 562) shows that IEPA believed it was only necessary to require a proper

biological study if the water was listed on the IEPA 305(b)/303(d) impaired waters list because

of prior biological studies . The email states, "The basis for the 305(b)/303(d) `partial

impairment' assessment was TDS standards violations rates greater than I I percent . Therefore,

forget using the contractor's bug study ." According to Mr

. Good, among the lessons learned

4 Subsequently, Hickory Creek has been listed as impaired based on biological studies

.

7

---

from IEPA's review of the Earth Tech study is that communities doing biological studies should

use IEPA methods if possible and that quality assurance methods should be worked out in

advance.

Despite the internal criticisms of the Earth Tech study, IEPA referenced it in the

November 26, 2002

Antidegradation Assessment stating,

"New Lenox sponsored a

macroinvertebrate survey of Hickory Creek at this location in August 2002

. Pollution intolerant

organisms were found both upstream and downstream of the existing discharge

." (HR 5)

The Antidegradation Analysis also stated that "the incremental nutrient loading

anticipated to result from this project is not expected to increase algae or other noxious plant

growth, diminish the present aquatic community or otherwise aggravate existing stream

conditions."

(HR 6) This claim is out of the blue since the record does not contain any scientific

study or consideration of the potential effect of

increased

nutrient discharges from the plant on

Hickory Creek or the Des Plaines River on algal growth, dissolved oxygen levels or pH levels

.

Further, since all it had was macroinvertebrate data taken at five sites, the Earth Tech study did

not discuss the potential effect of the existing or increased discharge on algal blooms, dissolved

oxygen levels, or pH levels

. In an email of September 9, 2002, IEPA's Robert Mosher wrote,

"There is no good way to predict what impact the expansion may have (antidegradation)

. . . ."

(HR 660.5)

In addition to the Earth Tech macroinvertebrate study, IEPA had before it at the time of

the issuance of the draft permit water quality data collected on August 20, 2002 by the Village of

New Lenox (HR 522-35)

. It indicated the total phosphorus in Hickory Creek on that particular

day was between 1

.49 and 1 .63 milligrams per liter

. (HR 524, 527) These concentrations are

approximately 20 times the U

. S

. EPA-recommended criterion and more than twice IEPA's value

8

---

for listing phosphorus as a potential cause of impairment . (HR 67) The sampling also found 2 .76

mg/L of total phosphorus in the New Lenox plant effluent, almost twice the upstream

concentration on that day and six times the average over time for that particular stream . (HR 68,

525) This data also shows stream nitrate levels between 6.2

mg/L and 7 .4 mg/L with New Lenox

discharging nitrate at a concentration of 11 mg/L. (HR 524, 525, 527)

Prior to issuing the public notice, IEPA also conducted a "reasonable potential analysis"

of the chance that the discharge could cause a violation of certain numeric water quality

standards . (HR 508-10) In this analysis the concentration of copper in the highest of the two

samples was 20 .5 pg/I while the chronic standard for copper at the hardness level found in

Hickory Creek is 20 .6 pg/l

. IEPA's calculation of the reasonable potential for a violation of

certain numeric water quality standards for copper using the U

.S. EPA method revealed that

there was a reasonable potential for the level of copper to be more than double the acute water

quality standard for copper and to exceed the chronic standard by a factor of over 3 .7. (HR 508) 5

C.

Information Learned and Issues Raised during the Public Comment Period

On January 5, 2003, IEPA gave notice that it had made a tentative decision to renew the

NPDES permit to New Lenox to discharge into Hickory Creek

. The draft renewed permit

allowed the New Lenox plant to increase its design average flow from 1 .54 million gallons per

day to 2 .516 million gallons per day . Along with the notice, IEPA filed its Antidegradation

Analysis. (HR 1-15)

After reviewing a copy of the draft permit, Petitioners commented orally at a public

hearing held on the draft permit on April 24, 2003 in the New -Lenox Council Chambers (HR 61-

5

IEPA also had before it when it wrote the draft permit various toxicity tests and other studies

that are not relevant to the issues raised in the appeal.

9

---

87) and through written comments filed during the comment period after the hearing (HR 107-

322) No one spoke at the hearing on behalf of the applicant and it does not appear that the

applicant submitted anything to IEPA during the comment period

.

1 .

Comments requesting that increased pollution be minimized

Petitioners at the hearing and in their written comments asked that IEPA incorporate into

the permit all technically and economically reasonable measures to avoid or minimize the extent

of the proposed increase in pollutant loadings

. Petitioners asked IEPA to improve the permit in a

number of respects including that the pen -nit provide for economically feasible controls on the

discharge of phosphorus and nitrogen and that IEPA seriously consider whether all of the

increased discharge was actually necessary in light of potential alternatives

. (HR 112-13, 120-21,

126, 265-67)

At the public hearing, counsel for Petitioners asked IEPA to provide an estimate of the

cost of removing phosphorus and the cost of removing nitrogen from the discharge

. (HR 73-74)

IEPA answered that it had not made any study of the cost of removing phosphorus or nitrogen at

the plant. IEPA mentioned at the hearing a study commissioned by the Illinois Association of

Wastewater Agencies ("IAWA") of nutrient removal but did not explain what this study might

imply as to whether New Lenox could feasibly remove nutrients or claim that it was necessary to

discharge the level of nutrients that the permit would allow . (HR 73-4)

2 .

Comments requesting that IEPA place limits in the permit to prevent

violations of water quality standards .

In their comments and testimony, Petitioners also raised legal and scientific issues

regarding compliance with water quality standards

. Petitioners commented that the draft permit

allowed discharges of phosphorus and nitrogen that cause, have a reasonable potential to cause

10

---

or contribute to violations of the water quality standards regarding offensive condition and that

nutrients are the likely cause of algal blooms and other unnatural plant growth

. (HR 68)

Petitioners also commented that the permit allowed discharges that may cause, have a reasonable

potential to cause or contribute to violations of water quality standards regarding dissolved

oxygen, pH and copper

. (HR 68, 126, 265-26)

A number of witnesses gave reports of offensive algal blooms in Hickory Creek

including nearby resident Kim Kowalski

. (HR 76) Jim Bland, Director of Integrated Lakes

Management, a firm that works to protect water bodies from eutrophication, stated on behalf of

the Des Plaines River Watershed Alliance that

:

[I] should comment that as recently as August of this year I saw

something unique in-stream, something I have not seen before

. The

entirety of the stream is covered from Pitcher Park almost all the

way up to Cedar Street with Hydrodictyon and algae on the surface

of it

. So here you have a running stream covered almost

completely and a running stream that's really a very, very viable

and important resource, pretty sadly degraded by the sorts of

nutrient discharge that we are seeing

. (HR 80, see also, HR l 10)

Community resident Brad Salamy stated at the hearing that, "Last summer, and this was

alluded to earlier, the creek was greener than I had ever seen it, a little patch down the center was

liquid, the rest of it was completely green like you could walk on it

." (HR 82-83)

Published treatises placed in the record show that elevated nutrient levels cause

impairment of streams and that if nutrient levels are high, that algal blooms will occur on those

days when flow, heat and sunlight are adequate

. In addition to lowering aesthetic and

recreational value of the affected waters, these algal blooms may cause adverse affects on

dissolved oxygen levels and pH

. (HR 163-64, 177, 180, 184, 187, 206, 210, 216) At the hearing

on the draft permit, IEPA acknowledged that it was "very possible" that supersaturated oxygen

11

---

levels found during the daytime hours in

Hickory Creek are due to algae saturation

photosynthesis. (HR 67) A study cited by Petitioner Prairie Rivers Network discussed how

nutrients discharged by a sewerage treatment plant affected a reservoir miles downstream from

the plant . (HR 255-63)

In support of comments filed by the Sierra Club on the draft permit, Professors David

Jenkins and Michael Lemke of the Biology Department, University of Illinois at Springfield

stated :

- Based on the New Lenox August data, the current plant releases an average of 64

.7

kg of nitrate+nitrite per day and 16

.1 kg of total P [total phosphorus] into Hickory

Creek.

-

Based on long-term average August flow data from USGS and USGS Schmuhl Road

nutrient analyses, current Hickory Creek nutrient loads upstream from the WWTP#1

are 151 kg nitrate+nitrite, and 22

.7 kg total P .

-

Therefore, the plant is responsible for 30% of downstream nitrate+nitrite load in

Hickory Creek, and 41 % of the Hickory Creek total P load

.

As currently planned (and assuming nutrient levels in plant discharge remain the

same), the new plant discharge will release 105

.7 kg of nitrate+nitrite per day and

26.3

kg of total P per day into Hickory Creek

. Assuming that Hickory Creek flow will

not change for reasons other than the planned extra plant discharge, the new plant

discharge will release 41 % of the stream nitrate+nitrite load, and 53

.7% of the stream

P load on an average_basis.

-

More importantly, the same-sized receiving stream will be bearing 170% the levels of

nitrate+nitrite upstream of the plant, and 216% of the total P levels upstream of the

12

---

plant . These levels of nutrient loading will have substantial effects on downstream

water quality, not only in Hickory Creek, but also the Des Plaines River and the

Illinois River . (HR 304-05)

Based on their study of the data, Professors Jenkins and Lemke commented that it is

likely that nutrient discharges from New Lenox are already adversely impacting Hickory Creek

and reductions of nutrient discharges are needed to prevent further impact . (HR 305)

In written comments, Mr . Bland, stated that "On a long term basis the proposed increase

in discharge [of nutrients] will increase the "attached algae" (periphyton that covers the rocks

and bottom rubble that are characteristic of this reach (c .f. Ecological Effects of Wastewater,

E.B. Welch)) . This increase in stream productivity has the capacity to dramatically alter the

character of the invertebrate communities downgradient from the STP ." (HR 110) In addition,

Mr. Bland asked that IEPA "Speed up the analysis of nutrient loading influences and apply this

analysis to the existing permit specification

. Document the direct influences of phosphorus

which already exist at the stream ." (HR 113)

In post hearing comments, Beth Wentzel of the Prairie Rivers Network stated that "The

literature supports the claim that excess nutrients, nitrogen and phosphorus, can impair streams

by affecting dissolved oxygen concentrations, causing nuisance algal blooms and causing other

problems." (HR 125) She concluded that :

As described at the hearing, the existing facility discharges

nitrogen and phosphorus to Hickory Creek at concentrations that

exceed instream concentrations . According to USGS flow data,

Hickory Creek is regularly dominated by effluent flow

. As

demonstrated above and through testimony provided by local

residents at the public hearing, there is reasonable potential that

instream concentrations cause violations of water quality

standards

. Because the discharge from New Lenox STP #1

contributes to these violations, the existing discharge is illegal and

13

---

an expansion of the discharge would be illegal

. (HR 126)

Regarding copper, Cynthia Skrukrud Ph

.D. stated that using the standard U

.S. EPA

methodology the IEPA should either place limits in the permit to prevent toxicity from copper or

at least get more data

. (HR 70) In a post-hearing letter, Skrukrud wrote :

The USEPA recommended method for Reasonable Potential Analysis is

to use a multiplier to determine the potential to exceed a given standard

when a small number of samples have been collected

. It is precisely

because so few data are collected that the multiplier is needed

. IEPA's

decision to abandon the method recommended by USEPA in

Technical

Support Document

for Water Quality Based Toxics

Control is not

acceptable

. IEPA should either use the multiplier in their analysis or

require that more samples be collected . . .

(HR 264-65)

Petitioners also commented that the draft permit and the studies and lack of studies that

led to the creation of the draft permit did not comply with Illinois antidegradation rules

protecting the existing uses of the receiving waters

. The studies that were conducted were not

properly conducted to determine the potential effect of the draft permit on existing uses of the

stream and IEPA took no steps to determine the existing recreational uses of the stream

. (HR 69,

265)

D.

The Final Permit and Responsiveness Document

On October 31, 2003, IEPA issued the permit that is subject to the current appeal

. The

final permit contains some changes from the draft including required levels of dissolved oxygen

in the effluent and a limit on total dissolved solids

.

1 .

IEPA declined to minimize pollution

The final permit did not place any limits on the discharge of phosphorus, nitrogen or

copper

. (HR 341-50) Other than to mention that the IAWA study (which is not in the record)

which indicated that the combined costs of treating nitrogen to an unmentioned level and

14

---

phosphorus to the level of 0 .5 mg/L might include capital costs of $5

.4 million for a hypothetical

plant (HR 358), IEPA never discussed the cost of treating phosphorus . The record contains no

mention of any analysis of the cost, feasibility or reasonableness of any level of phosphorus

treatment alone (without nitrogen treatment), of the feasibility of any level of phosphorus

treatment other than 0 .5 mg/L, or of the economic ability of New Lenox to afford some level of

phosphorus removal

. The Responsiveness Summary indicates that IEPA would only place limits

on nutrients in the permit after numeric standards arc set

. (HR 356) In response to the question

"How did the Agency determine whether all technically and economically reasonable measures

to avoid or minimize the extent of the proposed increase in pollutant loadings was made as to

phosphorus," the Responsiveness Summary states only :

As described in the antidegradation analysis, the nutrient issue is

currently being explored . It has gone through the national water

quality criteria process . The states are trying to deal with what the

federal EPA has set for nutrient criteria

. We estimate that it will

probably be another four or five years before we know what

phosphorus water quality standards should be in Illinois and to

know how different sources of phosphorus would have to be dealt

with. (HR 357)

This statement says nothing about what is technically and economically reasonable at the New

Lenox plant.

2 .

IEPA did not consider limits requested in the permit to prevent

violation of water quality standards .

IEPA placed no limit in the permit to prevent violation of the "offensive conditions"

narrative standard . The Responsiveness Summary acknowledges that "Area residents have

observed excessive and offensive blooms"

(HR 357) and does not deny that such conditions exist

15

---

in Hickory Creek from time to time

. In explanation of why it refused to set limits to ensure that

narrative water standards would he met in-stream, IEPA in the Responsiveness Summary states

:

There are no existing water quality standards for nutrients that

apply to Hickory Creek

. A narrative standard exists prohibiting

plant and algal growth of other than natural origin

. This is a very

difficult standard to apply to a permit

. The ongoing Agency effort

to adopt water quality standards for nutrients will resolve this

issue. In the meantime, the antidegradation assessment has

concluded that the expansion will not exacerbate any existing

problems in Hickory Creek due to nutrients

. (HR 357)

The final permit allowed a monthly daily average increase of 82 lbs of CBOD5 and did

not place any limit on the discharge of CBODS other that the effluent limit of 35 III

. Adm. Code

§ 304.120

. (HR 342-33) The Responsiveness Summary acknowledges that dissolved oxygen

readings from Hickory Creek of 16.6 mg/L at 3

:58 pm and 8.1 mg/L at 5

:21 am on April 24 and

25, 2003, show a large differential between the late afternoon reading when algal activity would

tend to produce the highest concentration and the early morning value that would be the time the

absolute lowest reading would be expected

." (HR 364) The Responsiveness Summary did not

consider whether the extent of the algal activity suggested by this data might cause a dissolved

oxygen violation under warmer weather conditions in May or June although the inverse

relationship between water temperature and dissolved oxygen levels was presented to IEPA

. (HR

6

A document in the record indicates that New Lenox's contractor, Earth Tech, was allowed to

help draft the Responsiveness Summary

. (HR 640-47) A comment on the draft Responsiveness

Summary which was apparently sent by Earth Tech to IEPA, argues that because Earth Tech did

not see any visible signs of over-nutrification at the plant discharge site on one day in August,

2002, the algal growth reportedly seen in August 2002 was most likely due to "low flow

conditions" and "solar heating

." (HR 639) There is no evidence in the record, however, that there

was anything unnatural about the flow levels or the sunlight and no one claims or could sensibly

claim that the algal bloom could occur without the necessary nutrients

. Further, the record

establishes that nutrients may affect water bodies well below the discharge point even if

conditions for algal blooms may not be suitable for algal growth at the plant discharge point

.

16

---

161)

Regarding pH, the Responsiveness Summary acknowledges that nutrients might cause

algal activity that would lead to high pH levels and states that "The Agency has included a pH

standard in the permit that requires the Water Quality standard to be met

." (HR 369) However,

IEPA offers no explanation of how pH limits in the permit will prevent nutrient discharges

allowed by the permit from causing algal blooms that will cause violations of the Illinois pH

standard.

The permit set no limit for copper

. (HR 343) No explanation appears in the record as to

why IEPA proceeded in conflict with the U

.S

. EPA recommended method for determining the

reasonable potential to violate the acute copper standard

. No study was done under 35 Ill. Adm .

Code § 302

.102 to develop a mixing zone analysis

. Regarding the chronic copper standard, the

New Lenox Responsiveness Summary states "It is important to remember that this comment is

dealing with reasonable potential to exceed a chronic water quality standard

. By definition, a

chronic standard must not be exceeded in the receiving stream by the average of at least four

samples."

(HR 363) Yet there is no discussion of the possibility of requiring more samples than

the two provided by the applicant

. Further, the Responsiveness Summary does not address the

issue that under the U

.S

. EPA recommended methodology, the samples taken indicate a

reasonable potential to violate the acute

copper standard as well as the chronic standard

.

3 .

IEPA did not require studies that protect existing conditions

Regarding the danger of increased pollution harming existing conditions, the

Responsiveness Summary states that "we believe all aspects of the regulation are covered

. The

(HR 125, 255-56) In any event, IEPA wisely did not rely on this Earth Tech argument in the

Responsiveness Summary and so it is irrelevant to this appeal

.

17

---

overall conclusion of the evaluation was that the expansion of the treatment plant would not

cause uses of Hickory Creek to be diminished ." It appears that the basis for this statement was

the Earth Tech macroinvertebrate study as it is the only fact cited in the discussion of the

potential effect of the increased discharge on existing conditions

. (HR 368) As noted before,

however, the Earth Tech study did not actually model or estimate conditions resulting from the

increased discharge, but only current conditions

. IEPA also did not consider the possibility that

MBI values above the plan t were affected by pollution above the plant .

Regarding criticism of the Earth Tech study, the Responsiveness Summary states that "at

least three individuals reviewed and commented on the report" (HR 370), without mentioning the

fact that at least three individuals asked that the study be redone

. The Responsiveness Summary

then states that, without the study being redone, the Macroinvertebrate Biotic Index used in the

study had been recalculated in response to one of the comments made on the study and that the

"overall conclusion of the study was that there was very little difference between the upstream

and downstream MBI values and therefore, an insignificant or no adverse effect on the receiving

stream from the effluent was apparent

." (HR 370) IEPA did not consider the possible effect of

the discharges above the plant on the upstream MBI value and offered no explanation as to how

a study of the existing discharge's affects on macroinvertebrates, even if properly performed,

could show that a substantially increased discharge would not affect existing uses .

II.

The Standard and Scope of Review

A.

Standard of review and burden of proof

The burden of proof in this proceeding is on Petitioners to show that the permit as issued

violated the Environmental Protection Act or the Board rules . Prairie Rivers Network v. Illinois

Pollution Control Board,

335 Ill. App . 3d 391, 400, 781 N .E. 2d 372, 379 (4"' Dist . 2002). As

18

---

will be seen below, Petitioners have easily met this burden because it is clear that issuance of the

permit violated the Act and numerous Board rules .

IEPA's decision to issue the permit in its current form must be "supportable by

substantial evidence ."

Des Plaines River Watershed Alliance v

. Illinois EPA, PCB 04-88, 2005

Ill. Env. Lexis 622 at *15 (Nov . 17, 2005)

. The substantial evidence standard requires "more

than a mere scintilla" of evidence and demands "such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion ."

Finnerty v . Personnel Bd. of the City of

Chicago, 303 111 . App . 3d 1, 11, 70 N.E.2d

600, 608 (1 s` Dist. 1999) (quoting

Richardson v .

Perales, 402 U.S

. 389, 401 (1971))

. The substantial evidence standard is "not nearly" as

deferential to an agency's decision as the "manifest weight of the evidence" standard

. Id. at 11-

12

. For many of the issues described below, the Record shows no evidence or at most a scintilla

of evidence to support IEPA

.

Agency conclusions of law should be reviewed de novo by this Board

. City of Kankakee

v. County ofKankakee, PCB No

. 03-125, 2003 III . Env. LEXIS 462, at *34-35 (Aug

. 7, 2003)

(noting that jurisdiction is a question of law that, therefore, is reviewed de novo)

; Saline County

Landfill v. Illinois EPA,

PCB No . 04-117, 2004 111 . Env

. LEXIS 255, at *38-39 (May 6, 2004)

(noting that Agency's interpretation of a provision of the Environmental Protection Act is "not

relevant to the Board's decision" and that the "Board is not bound by the Agency's

interpretation") ;

Saline County Landfill v. Illinois EPA, PCB No

. 04-117, 2004 Ill . Env. LEXIS

255, at *38-39 (May 6, 2004) ("Because the question of jurisdiction is a legal question, the Board

will review it de novo .") .

19

---

B.

Only evidence in the record at the time IEPA issued the permit is relevant

and the permit may only be upheld on the basis of theories and facts relied

on by the Agency .

The factual and scientific issues that are potentially relevant to determining the full effect

of the New Lenox discharge on Hickory Creek, the Des Plaines River and the Illinois River are

complex

. This is true both as to the effect of the discharge as it existed at the time of the permit

issuance and as to effect the increased discharge will have on Hickory Creek if the substantial

expansion of the discharge is allowed . Fortunately, however, for this proceeding the issues are

more focused

. Board review of the IEPA decision is subject to various limits and the IEPA

decision below is subject to various laws and Board regulations specifying what IEPA must do to

issue a proper permit

.

First, data that were not before IEPA at the time it issued the permit are not relevant

. As

the Board has made clear, this case must be decided "exclusively on the basis of the record

before the Agency" under 415 ILCS § 5/40(e)

. Des Plaines River Watershed Alliance

at *l 10-

14

. It is, thus, too late to present evidence that was not before the Agency

. If the Board finds that

the permit as issued is not supported by substantial evidence in the record, the Board need not

and should not attempt to resolve the scientific issues, but should remand those issues back to

IEPA which can obtain more evidence .

Second, Board rules and basic principles of administrative law limit the rationales that

may be advanced to uphold the permit decision

. In particular, IEPA's decision to issue the permit

must be supported and justified in the Responsiveness Summary (HR 352-74) and the facts and

documents cited in the Responsiveness Summary .

35 Ill . Adm. Code § 166

.192, Contents of Responsiveness Summary, provides

:

20

---

a)

Responsiveness summary shall be prepared by the Agency

. The

responsiveness summary shall include

. . .

4)

A summary of all the views, significant comments,

criticisms and suggestions,

whether written or oral,

submitted at the hearing or during the time the hearing

record was open

;

5)

The

Agency's specific response

to all significant

comments, criticisms, and suggestions ; . . .

The federal Environmental Appeals Board

("EAB") interpreted language that is

substantially identical to 35 Ill

. Adm. Code § 166.192

in a decision remanding for

reconsideration portions of a NPDES permit issued by U

.S . EPA. The EAB explained

:

Under the regulations that govern this permitting proceeding, a

pen-nit issuer must "briefly describe and respond to all significant

comments on the draft permit

." 40 C.F .R. § 124 17(a)(2). The

Board has interpreted this provision as meaning that a response to

comments need not be of the same length or level of detail as the

comments and that related comments may be grouped together and

responded to as a unit

. (citations omitted) The Board has also held,

however, that a response to comments

must address the issues

raised in a meaningful fashion

and that the response, through

perhaps brief, must nonetheless be clear and thorough enough to

adequately encompass the issues raised by the commenter

.

(citations omitted) Moreover, the administrative record must

reflect the permit issuer's "considered judgment," meaning that the

permit issuer must articulate with reasonable clarity the reasons for

its conclusions and the significance of crucial facts it relied upon

in

reaching those conclusions .

In re Washington Aqueduct Water Supply System, 11 E .A.D

. 565, 2004 EPA App . LEXIS 28,

*55 (EAB 2004) (emphasis added) (Appendix of Authorities A)

.

IEPA and the applicant cannot develop new rationales for what IEPA did with the matter

in its current posture and the permit can be upheld only on the basis of theories clearly

articulated in the Responsiveness Summary

. See Federal Power Comm . v

. Texaco, 417 U.S . 380,

397 (1974) (holding agency order can only be affirmed "on the same basis articulated in the

21

---

order by the agency itself') ; Reservation Telephone Cooperative v . Federal Communications

Commission, 826 F

.2d 1128, 1134 (D.C . Cir. 1987) (stating court "cannot affirm an agency's

decision on any rationale other than the one it offers to explain its actions")

. Possible rationales

for issuance of the permit that do not appear in the Responsiveness Summary may properly be

considered by IEPA after the Board remands the pennit to it for reconsideration .

In addition, the permit cannot be upheld on the basis of statements in the Responsiveness

Summary or documents to which the Responsive Summary refers unless those statements are

supported by facts or logic . The law requires a reasoned analysis of the issues at hand, not just

unsupported conclusions . See, e.g., Reinhardt v . Board of Educ

. of Alton Community Unit Sch .

Dist. No. II, 61 111 . 2d 101, 103-04 (III

. 1975) (agency decision that "reasons or causes" existed

for firing teacher reversed where agency did not describe those reasons or causes) ;

District

1199P v

. National Labor Relations Bd., 864 F .2d 1096, 1098 (3 id Cir. 1989)

("[t]he overarching

principle of agency review is that the agency must provide a reasoned explanation for its

actions") ; see also Harris v

. Cropmate Co., 302 111. App . 3d 364, 375, 706 N .E.2d 55, 65 (4"

Dist

. 1999) ("[c]ourts should remember that they need not -

and should not - accept an expert's

opinion on the basis of ipse dixit, i.e.,

such a thing is so because I say it is so"). Indeed, with

regard to compliance with water quality standards, Illinois has a specific provision, 35 111

. Adm.

Code § 309

.142, requiring that compliance with water quality standards be "verified

."

In summary, while the facts and science regarding the effects of sewage on natural

streams are complex and the record contains a lot of material, the only things relevant to this

appeal are the facts in the record that were offered by the applicant, Petitioners and others and

the conclusions in the Responsiveness Summary that are substantiated by facts in the record

.

22

---

III. The Relevant Laws and Regulations Regarding NPDES Permits

.

As discussed below, a permit violates the Act and the Board rules unless IEPA before

issuing the permit has:

-

Assured that all reasonable technologies are used to minimize the pollution so that any

increase in pollution can properly be said to be "necessary,"

- Assured that the increased pollution will not result in a violation of narrative or numeric

water quality standards and ensured that the total discharge allowed under the permit

(existing and increased) will not cause or contribute to a violation of numeric or narrative

water quality standards in the receiving waters, and

- Assured that existing uses will not be harmed .

A.

Illinois antidegradation regulations require that a permit for a new or

increased discharge be granted only if the increase is necessary to

accommodate important economic or social development and all reasonable

measures to avoid or minimize the extent of the new pollution are

incorporated into the permit.

Key provisions of Illinois antidegradation regulations enacted by the Board in 2002, 35

Rl . Adm. Code § 302 .105(c), state :

High Quality Waters

1)

Except as otherwise provided in subsection (d) of this Section,

waters of the State whose existing quality is better than any of the

established standards of this Part must be maintained in their present high

quality, unless the lowering of the water quality is

necessary to

accommodate important economic or social development .

2)

The Agency must assess any proposed increase in pollutant

loading that necessitates a new, renewed or modified NPDES permit or

any activity requiring a CWA Section 401 certification to determine

compliance with this Section

. The assessment to determine compliance

with this Section must be made on a case-by-case basis . In making this

assessment, the Agency

must:

A)

Consider the fate and effect of any parameters proposed for

an increased pollutant loading .

B)

Assure the following :

c)

23

---

i)

The applicable numeric or narrative water quality

standard will not be exceeded as a result of the proposed

activity;

ii)

All existing uses will be fully protected

;

iii) All technically and economically reasonable

measures to avoid or

minimize the extent of the proposed

increase in pollution loading have been incorporated into

the proposed activity; . . . .

35 Ill . Adm. Code § 302 .105(c) (emphasis added) .

This language of 302

.105(c) is clear and mandatory

. Before granting a permit allowing

new pollution loadings, IEPA "must" "assure" that "all"

reasonable measures to "minimize" the

extent of the pollution have been incorporated .

See also 35 Ill. Adm . Code § 302

.105(f)(1)(D)

(information on treatment levels and alternatives must be presented by the applicant)

. "Assure"

means "to make certain and put beyond doubt .

To . . . ensure positively ." Rite Aid, Inc . v.

Houston, 171 F .3d 842, 852 n .10 (3"d Cir

. 1999) citing Black's Law Dictionary 123 (6' h ed.

1990)

. To "minimize" something is to reduce it "to the smallest possible amount, extent or

degree".

Hazardous Waste Treatment Council v. U.S. EPA,

886 F.2d 355, 361 (D .C. Cir. 1989) .

While the Board's language requiring IEPA to consider all the ways to minimize

pollution could not be clearer, it is worthwhile to review the considerations that led the Board to

adopt this language

. Even decades before adoption of the 2002 antidegradation rules, there was

an established Illinois policy against allowing unnecessary pollution even if that new pollution

would not cause a violation of water quality standards

. As the Board explained in 1972 when

adopting the "nondegradation" policy that preceded the current language, "This [policy]

preserves the present prohibition on unnecessary degradation of waters presently of better quality

than that required by the standards, recognizing that the standards represent not optimum water

24

---

quality but the worst we are prepared to tolerate if economic conditions so require

." In the

Matter of Water Quality Standards Revisions,

R71-14 (PCB March 7, 1972) p

. 11 ; see also In

the Matter

of:

Site-Specific Exception to Effluent Standards for the Greater Peoria Sanitary and

Sewage Disposal District, No

. R87-21, 1988 Ill. Env

. Lexis 470 at *22 (Oct. 6, 1988) (the

mandate of the Clean Water Act to restore, maintain and enhance water quality requires that

Illinois "strive to go beyond the minimum cleanup goal of polluted waters, as well as to resist the

temptation to pollute higher quality waters up to the maximum allowable limits")

.

In drafting current Section 302

.105(c), the Board was also advised by the federal

antidegradation regulations, which permit a lowering of water quality only if it is "necessary to

accommodate important economic or social development," 40 C

.F.R. § 131 .12(a)(2) . U.S. EPA

in its

Water Quality Standards Handbook

(4th Ed. 1994)

(available at

www.epa.gov/watescience/standards/handbook)

explained :

[Lowering water quality is allowed] only in a few extraordinary

circumstances where the economic and social need for the activity

clearly outweighs the benefit of maintaining water quality above

that required for "fishable/swimmable" water, and both cannot be

achieved

. The burden of demonstration on the individual proposing

such activity will be very high

. In any case, moreover, the existing

use must be maintained and the activity shall not preclude the

maintenance of a "fishable swimmable" level of water quality

protection . (Appendix of Authorities B, p

. 4-7)

B.

A NPDES permit must contain limits that ensure that the total discharges

allowed under the permit will not cause or contribute to violations of

numeric or narrative water quality standards .

There are a number of Board regulations and, by incorporation, federal regulations that

require that a NPDES permit have limits that "assure" or "ensure" that water quality standards

not be violated as a result of the discharges allowed under the permit

. As quoted above, a permit

25

---

can not be granted properly under 35 III . Adm. Code § 302

.105(c)(2)(B)(i) for a new or increased

discharge unless the Agency has "assured" that :

The applicable numeric or narrative water quality standard will not

be exceeded as a result of the proposed activity

.

In addition to considering the effect of the increased discharge from the New Lenox

treatment plant, IEPA was required to consider the effect on water quality standards of the total

discharge from the plant along with the effects of the other sources of pollution to Hickory

Creek. The first sentence of 35 Ill . Adm. Code § 304

.105 states :

In addition to the other requirements of this Part, no effluent shall,

alone or in combination with other sources, cause a violation of

any applicable water quality standard .

Under this "alone or in combination with other sources" language, the Board has upheld

phosphorus limits even where the point source at issue was only seven percent (7%) of the total

dissolved phosphorus input to the water body at issue . In the Matter of.`

Site-Specific Phosphorus

Limitation for the City of Shelbyville, No. R83-12, 1984 IIL Env

. Lexis 129 (Dec . 20, 1984).

Further, 35 Ill . Adm

. Code § 309 .14 requires that:

In establishing the terms and conditions of each issued NPDES

Permit, the Agency shall apply and ensure compliance with all of

the following, whenever applicable :

(d) Any more stringent limitation, including those

1) necessary to meet water quality standards

. . .,

2) necessary to meet any other federal law or

regulation . . .

Thus, under 35 III . Adm

. Code § 309 .14(d)(2) federal regulations 40 C

.F.R. § 122 .4 and

122.44(d) are applicable in this proceeding

. 40 C .F.R. § 122 .4 provides that

:

No [NPDES] permit may be issued :

26

---

(d) When

the imposition of conditions cannot ensure

compliance with the applicable water quality requirements

of all affected States . . . .

(emphasis added)

"Ensure" means "to make certain or sure

." Springwood Assoc. v. Lumpkin, 239 111. App

. 3d 771,

783, 606 N .E.2d

733, 740 (1992) citing American Heritage Dictionary 456 (2

nd

Ed. 1982). When

a statue requires an agency to "ensure" something, it "unambiguously

requires the state `to make

certain"'

that the relevant requirements are carried out . Corey II v

. Board of Education of the

City of Chicago,

995 F . Supp. 900, 913 (N.D. Ill

. 1998) (emphasis added) . A mandate to

"ensure" that certain environmental protections are taken "requires agencies to take action

. . .

and `to make certain, to secure, to guarantee'

. . ." Defenders of Wildlife v

. U.S. EPA, 420 F.3d

946, 963-64 (9" Cir

. 2005)

. The meaning of "ensure" is not ambiguous ; indeed, "[o]ne would be

hard pressed to find a statutory provision whose terms were any plainer ." Id. (quoting

Tennessee

Valley Authority v. Hill,

437 U.S . 153, 180 (1978)) .

40 C.F.R

. § 122.4(d), which is expressly applicable to state programs, has been held to

require that the permitting agency include limits in every permit that

ensure that the discharge

will not result in a violation of water quality standards . The federal EAB in

In re City of

Marlborough, Massachusetts Easterly Wastewater Treatment Facility, NPDES Appeal No . 04-

113, 2005 EPA App

. LEXIS 14, (EAB Aug

. I l, 2005) (Appendix of Authorities C) addressed a

situation very similar to the case at hand

. The permit issuing agency had decided that a 0 .1 mg/L

limit for phosphorus, along with a statement "strongly encourag[ing]" the permittee to take

additional steps to reduce phosphorus pollution, could prevent a violation of the state's narrative

water quality standard against objectionable conditions including algal growth

. Despite the 0.1

mg/L limit . The EAB remanded the permit to the agency, finding that

:

27

---

[I]t is unclear whether the Permit complies with the regulatory

prohibition on issuing a permit `when imposition of conditions

cannot

ensure compliance with the applicable water quality

requirements .' 40 CFR § 122 .4(d)

. (emphasis added)

Marlborough

at 21 (emphasis in original)

. The provision the Board quoted, 40 C .F.R

. § 122.4(d),

applies to the New Lenox permit as well

. The Board held that the agency on remand "must"

actually "demonstrate that the Permit, as written, will ensure compliance with water quality

standards" or must modify the permit . Id. at 40. Here IEPA did not even require the

1.0 mg/L

limit that has been required of Illinois dischargers discharging less than twenty five miles

upstream of lakes for decades

.

Still further, 40 C .F.R § 122

.44(d)(1)(i), also applicable to state programs, requires that

limitations in an NPDES permit

:

. . . must control all pollutants or pollutant parameters which

. . . are

or may be discharged at a level that 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 .

As explained by American Paper Institute v

. U.S. EPA, 996 F

.2d 346, 350 (D.C. Cir. 1993),

"permits must incorporate limitations necessary to meet standards that rely on narrative criteria

to protect a designated use as well as standards that contain specific numeric criteria for

particular chemicals

." Further, not only must permit limits protect standards in the waters

immediately below the discharge point, standards must be protected in waters far downstream of

the discharge, even in another state . Arkansas v

. Oklahoma, 503 U.S. 91, 107 (1992)

; see also 40

§ C .F.R. 122 .4(i)

. These federal principles of law are fully applicable to Illinois NPDES permits

under Board regulations requiring permits to meet any federal law or regulation

. 35 III . Adm.

Code § 309 .141(d)(2).

28

---

C. Illinois antidegradation regulations require that a permit for a new or

increased discharge only be granted if the Agency assures that all existing

uses will be fully protected .

As stated in the antidegradation provision quoted above, 35 Ill . Adm . Code §

302.105(c)(2)(B)(ii) provides that in granting a permit for an increased discharge, the Agency

"must assure . . .

[that] all existing uses will be protected ." Again the operative verb is "assure."

The meaning of "existing uses" is explained in 35 Ill . Adm. Code § 302 .105(a) and

includes the existing aquatic community and species diversity

.

IV. The Permit As Issued Violates The Act And The Board Rules In Numerous Respects

A.

The Permit as issued violates the requirement that the Agency must assure

that all reasonable means be used to minimize new or increased pollution

because steps to remove phosphorus and nitrogen were not considered .

As discussed above, the Board rules clearly require IEPA to look at all practical ways to

limit new pollution and to require all feasible minimization techniques . The permit did not

comply with 35 111 . Adm . Code § 302 .105(c)(2)(B)(iii) because IEPA failed in at least two

different ways to assure that the permit incorporated all reasonable measures to avoid or

minimize the extent of the new pollution loading . The IEPA offers no coherent explanation for

failing to include phosphorus controls, and no explanation at all for failing to include nitrogen

controls . Plainly, the Agency's decision not to require any controls on phosphorus or nitrogen is

not "supportable by substantial evidence ."

1 .

The Agency should have required reasonable phosphorus removal .

IEPA was required to minimize pollution to that which was necessary . IEPA violated this

rule by failing to require that the New Lenox plant limit phosphorus discharges to the amount

"necessary to accommodate important economic or social development ." 35 111 . Adm. Code §

302 .105(c)(1) .

29

---

The word "necessary," which is not defined in the regulations, must be read according to

its plain meaning . "The Administrative Code has the force and effect of law, and the rules of

statutory construction apply when construing its provisions ." Ress v. Office of the State

Comptroller, 329 Ill. App . 3d 136, 142, 768 N .E .2d 255, 260 (1" Dist

. 2002). An agency must

give effect to the intent of the rules

. "The best indicator of this intent is the language of the rule,

which is given its plain and ordinary meaning." Id.

The plain meaning of "necessary" is clear .

Something is "necessary" when it is "absolutely essential," "needed to achieve a certain result,"

or unavoidable or inevitable . American Heritage Dictionary (4`h

ed. 2000). See AT&T Corp v.

Iowa Utilities Bd., 525 U.S

. 366, 392 (rejecting argument that "necessary" is to be read loosely

as being satisfied whenever an increased cost is involved) ; Chatham Corp. v. Dann Ins .,

351 111 .

App. 3d 353, 360, 812 N .E.2d 483, 490 (1" Dist

. 2004) (agreeing that "necessary" should be

understood to mean "absolutely essential") .

There is no evidence in the record that allowing any increased phosphorus pollution is

necessary at all, much less that allowing increased phosphorus by the amount New Lenox

requested, is unavoidable, absolutely essential, or needed

. Dozens of other communities around

Illinois have been able to support economic and population growth while also controlling

phosphorus discharges . At a bare minimum to comply with the antidegradation rules, IEPA

should have carefully considered the level of nutrient control that New Lenox could technically

and economically provide

. As explained above, the law requires that new pollution be minimized

even when it would not potentially affect the receiving water

. However, IEPA's failure to

minimize the increased nutrient pollution of Hickory Creek and downstream waters is

particularly regrettable because the record shows that the New Lenox discharge is a major source

of phosphorus to Hickory Creek and there is evidence that phosphorus is already having an

30

---

adverse impact on downstream waters .

The record contains no discussion or evidence showing that New Lenox, a growing and

wealthy community, could not bear the cost of phosphorus treatment . At a minimum, for

lowering of water quality to be "necessary to accommodate important economic or social

development," it must be the case that the development cannot practicably go forward without

allowing lower water quality . As was explained by U .S. EPA in giving guidance to states as to

how to implement antidegradation, "[w]hen performing an antidegradation review, the first

question is whether the pollution controls needed to maintain the high-quality water will interfere

with the proposed development . If not, then the lowering of water quality is not warranted ."

Interim Economic Guidance for Water Quality Standards, U .S.

EPA (1995) (emphasis added).

U.S

. EPA's guidance also sets a general rule that pollution loading is not normally "necessary" if

it can be avoided at an annual cost of less than 1 .0 percent of the median household income of

the region served . 8 IEPA never looked to see if phosphorus controls at the New Lenox plant

would meet this benchmark

. See also, Mississippi Sierra Club v. Mississippi Dept. of E'nv'tal

Quality, 819 So.2d 515, 521-23 (Miss . 2002) (reversing pen-nit where the agency offered nothing

more than a ponclusory statement that the alternatives were "cost prohibitive") .

IEPA should at least have imposed a I mg/L phosphorus limit . A I mg/L phosphorus

limit was found economically reasonable by the Board even given the technology in existence

two decades ago. See Village of Wauconda v

. Illinois EPA, PCB No. 81-17, 1981 Ill . Env. Lexis

7

Available at http ://www.epa.gov/waterscience/econ/chaptr5 .html and attached to this

memorandum as Supplemental Ex D

. While the U .S . EPA Interim Economic Guidance is only

guidance, it does indicate the sort of factors that IEPA should consider if it is to comply with the

35 111 . Adm. Code § 302 .105(c) requirements

.

8 Id. at 5-5.

31

---

266, at *4 (May 1, 1981); In the Matter of

Amendments to the Water Pollution Regulations, No .

R76-1, 1979 111

. Env. Lexis 312, at *2 (Feb. 15, 1979); In the Matter of

Site-Specific

Phosphorus Limitation for the City of Shelbyville, No .

R83-12, 1984 111 . Env. Lexis 129, *13

(December 20, 1984) . IEPA offers no specific excuse for failing to consider standard phosphorus

removal treatment such as has been required of numerous Illinois dischargers upstream of lakes

for decades . See 35 Ill . Adm. Code § 304 .123 . (1 .0 mg/L limit required for dischargers less than

25 miles above lakes) In City of Marlborough a limit

of . 1 mg/L was required to prevent the sort

of problem known to be in Hickory Creek

.

The only rationale for failing to put phosphorus limits that appears in the Responsiveness

Summary was that IEPA was working on numeric nutrient standards

.9 That explanation,

however, is a non sequitur .

The fact that IEPA is working on future phosphorus numeric

standards is legally irrelevant to its failure to comply with existing antidegradation regulations

.

The requirement that unnecessary new pollution not be allowed applies even if all of the other

water quality standards are actually satisfied and it has been shown that the new pollution will

not have an effect on existing uses . As well as being illogical, IEPA's rationale for not

complying with antidegradation rules is not supported by even a scintilla of evidence and

certainly does not meet the "substantial evidence" standard

. "Where it appears that the agency's

findings are not supported by substantial evidence, they will be reversed ."

Hoffman v . Lyon

Metal Products, 217 111. App. 3d 490, 497, 577 N .E.2d 514, 519 (2d Dist

. 1991).

v While IEPA's failure to consider phosphorus and nitrogen limits is not supported by substantial

weight of the substantial evidence, it is also legal error as they effectively concluded that the

antidegradation provision's requirements do not apply here .

32

---

The Board in adopting 35 Ill . Adm . Code § 302

.105(c) made clear that the "main

objective" is to identify and implement alternatives that reduce or eliminate the proposed

increased loadings . In the Matter of.-

Revision to Antidegradation Rules, No . R01-13, 2001 III .

Env. Lexis 316 at *31 (June 21, 2001). Here IEPA plainly frustrated the main objective by

refusing to consider phosphorus removal at all

.

2.

The Agency Should Have Considered Reasonable Nitrogen Removal

The situation as to nitrogen is similar to that as to phosphorus except that the

Responsiveness Summary provides no hint at all as to why IEPA did not require or even consider

nitrogen treatment of the New Lenox wastewater. The Agency violated 35 111 . Adm . Code §

166.192 by failing to respond to the request for nitrogen controls and violated 35 111

. Adm. Code

§ 302 .105(c) by failing to even consider, much less assure, that feasible nitrogen removal was

implemented. 10

B.

The Agency did not assure that the new loading allowed by the permit would

not result in violation of water quality standards and did not ensure that the

total discharge allow by the permit would not do so .

1 .

Compliance with the narrative standard on offensive conditions was

not ensured .

35 Ill

. Adm. Code § 302 .203 establishes the narrative standard that :

Waters of the State shall be free from sludge or bottom deposits,

floating debris, visible oil, odor, plant or algal growth, color or

turbidity of other than natural origin .

Under the law discussed above, IEPA was required under the antidegradation regulation

35 Ill . Adm . Code § 302

.105 (e) to assure that the increased pollution to be allowed under the

1D Clearly, where no explanation is given at all, a decision is not "supportable by substantial

evidence" in the record .

33

---

permit would not result in a violation of the narrative standard . In addition, under 35 III . Adm .

Code § 304 .105 and 35 111 . Adm . Code § 309 .141(d) IEPA was required to ensure that the total

discharge being allowed under the permit would not cause or contribute to a violation of the

narrative standard against algal blooms . IEPA did neither .

All that IEPA did to assure that the increased discharge would not cause violation of the

"offensive conditions" standard was to pronounce in the Antidegradation Analysis that the

discharge would not do so . There is not a scintilla of fact or science in the record to support this

pronouncement. The Earth Tech study was not designed to consider anything other than the

effect of the existing discharge on biological life in the stream and did not even consider whether

the existing discharge was causing offensive algal blooms . The Earth Tech study concluded that

the current discharge is not harming macroinvertebrates very much . If there is a way to

extrapolate from this conclusion regarding macroinvertebrates to the conclusion that the

increased discharge would not cause offensive algal blooms, this extrapolation is not explained

in the Responsiveness Summary ." IEPA only assured that the increased discharge would not

cause violation of the narrative standard if one can assure something simply by unilaterally

declaring it to be so .

Contra Bradd v. Illinois EPA, PCB No . 90-173, 1991 Ill . Env. Lexis 367 at

*34-35 and *37-38 (IEPA's unsupported conclusion inadequate in light of unrebutted testimony

to the contrary); Illinois Ayers Oil Co. v. Illinois EPA, PCB No . 03-214, 2004 111 . Env. Lexis 195

at *41-43 (IEPA's reliance on "one statement" in the record for support of its position

outweighed by the "ample evidence" to the contrary) .

I I In fact, ]EPA biologists noted that the Earth Tech "statements made on page 3 of their report

[which includes the claim that increased discharges will not affect the creek] are all without

merit." (HR 667)

34

---

On the question of whether the permit ensures that the total plant discharge (existing and

increased) will not cause or contribute to violations of the offensive conditions standard, IEPA

did not even offer an unsupported pronouncement

. In the Responsiveness Summary, IEPA does

not claim to have tried to ensure that the narrative standard against unnatural algal growth will

not be violated or continue to be violated as a result of the discharge

. While acknowledging the

eyewitness reports and scientific evidence of high levels of algal activity, IEPA essentially states

that it will not attempt to limit the discharge to prevent violations of 35 111

. Adm. Code § 302 .203

because that standard "is a very difficult standard to apply to a permit

." (HR 357) IEPA can only

be found to have complied with the requirement that NPDES permits ensure that narrative

standards will not be violated if stating that it is "very difficult" to comply with a rule is

sufficient to establish compliance .

IEPA's conclusory and unsupported statement declining to apply the offensive conditions

standard to the New Lenox permit cannot stand

. The Illinois Supreme Court has not hesitated to

dismiss IEPA assertions that are "conclusory" and "fail to cite any authority,"

Illinois E.P.A. v.

Pollution Control Board,

115 Ill. 2d 65, 71 (1986) .

Under the applicable law the Board should remand the permit to the Agency because the

record shows that the Agency did not ensure that discharges from the plant would not cause

violations of water quality standards

. In re: City of Marlborough,

NPDES Appeal No. 04-113,

2005 EPA App

. Lexis 14 at *38, remanded a permit where it was "simply unclear from the

record before us whether this Permit will ensure compliance with water quality standards

." Here

the situation is much worse as the record is very clear that the permit at issue does not ensure

compliance with the Illinois narrative standard against offensive conditions

.

35

---

2.

The permit does not assure that the increased discharge

would not

result in violations of the

dissolved oxygen or pH standards and does

not ensure that the total New

Lenox discharge will not cause or

contribute to a violation of those standards

.

IEPA also failed to assure that the increased discharge would not cause algal blooms that

would cause violations of the dissolved oxygen standard or the pH standard

. IEPA further failed

to ensure that the total discharge from the plant would not cause or contribute to violations of the

dissolved oxygen or pH standard

. IEPA did nothing to prevent discharges from the plant that

would cause algal blooms although there was evidence that nutrients in the creek were already

causing violations of the pH standard (HR 126) as well as dissolved oxygen swings that would

cause violations of the dissolved oxygen standard in the summer

. (HR 161, 266, 364)

To ensure that the discharge would not cause such violations would have required

monitoring pH and dissolved oxygen carefully

. Hickory Creek has apparently never been studied

during pre-dawn summertime conditions when algal activity is most likely to cause violations of

dissolved oxygen standards

. One does not assure that something will not happen by failing to

look to see whether it is already happening

. IEPA cannot rely on evidence from the wrong times

of day to conclude that no violations will occur

. See Permatreat of Illinois v

. Illinois EPA, PCB

No

. 93-159, 1993 Ill . Env

. Lexis 1513 at *18-19 and *22-23 (IEPA assertion of a violation

overruled where evidence of the violation was from the incorrect time period and IEPA was

unsure whether violation existed at relevant time)

. IEPA did not assure that increased discharge

of nutrients would not cause or contribute to violations of the pH or dissolved oxygen standards

.

The Earth Tech study also did not show that the New Lenox plant is not causing or

contributing todissolved

oxygen or pH problems

. Had the study been done correctly, it would at

most have shown that the dissolved oxygen and pH levels caused by the discharges from the

36

---

New Lenox plant were not affecting macroinvertebrate life at the four sites studied below New

Lenox any more badly than pollution sources upstream from New Lenox were affecting the one

site studied above the New Lenox plant . It is known that nutrients from sewerage treatment plant

discharges can cause algal activity many miles below the discharge . (HR 125, 262) Indeed, it

appears that this is what is happening in Hickory Creek where discharges from New Lenox,

Frankfort and other pollution sources are causing algal blooms at Pilcher Park and other sites

well below New Lenox . (HR 80)

3 .

IEPA must further consider whether a permit limit on copper is

needed

The permit does not comply with 35 Ill

. Adm. Code § 302 .105(c)(2)(B)(i) or 35 111 . Adm.

Code § 309 .141(d) because it does not "assure" or "ensure" that the discharge will not cause or

contribute to a violation of the copper standard

. While the IEPA permit writers purported to

consider what limits were necessary to prevent violations of numeric water quality standards,

their efforts fell short of assuring that the copper limit would not be exceeded .

12

The U.S. EPA NPDES Permit Writers

Manual discusses the problem of how to

determine reasonable potential to violate water quality standards and how to deal with the risk of

uncertainly particularly in the case in which there is limited data .

13

The Manual states :

All toxic effects testing and exposure assessment parameters, for

both effluent toxicity and individual chemical, have some degree

of uncertainty associated with them. The more limited amount of

data, the larger the uncertainty.

To better characterize the effects of

effluent variability and reduce uncertainty in the process of

deciding whether to require an effluent limit EPA has developed a

12

It may be as IEPA has suggested (HR 70) that the copper discharge would qualify for a

properly demarcated mixing zone under 35 Ill . Adm. Code §302 .102, but if IEPA is to rely on a

mixing zone to establish compliance, it must ensure on the record that the discharge actually

qualifies for a mixing zone .

Available at : http ://cfpub .epa.gov/npdes/writermanual .cfin?program id=45

37

---

statistical approach to determining a reasonable potential .

Section 6 .3 .2 p. 102, Appendix of Authorities B (emphasis added)

.

IEPA did its analysis of the "reasonable potential to exceed" with only two effluent

samples and actually did the calculation recommended by U

.S. EPA. Based on the fact it was

using only two samples, IEPA did the math and found that there was a potential to exceed the

acute and chronic standards for copper. IEPA then threw federal guidance out the window and

decided not to impose any copper limits in the permit or even establish a monitoring

requirement .

Had IEPA applied the federal guidance, it would have had to place limits in the permit

because its calculation showed that there was a reasonable potential for violating standards

.

Indeed, given the limited amount of data that it looked at, there was a reasonable potential for a

discharge that exceeded the acute

water quality standard by more than 200 percent . (HR 508) 14

The record then definitely does not include "substantial evidence" showing that IEPA

ensured compliance with the acute copper standard

. The Responsiveness Summary does not even

discuss the question of whether there could be a violation of the acute standard although IEPA's

analysis indicates that there is a reasonable potential for violation of it

. Thus the permit must be

remanded for reconsideration of that issue .

As to the chronic standard, IEPA choose to ignore the federal guidance in favor of its

own rule that allows permits to be issued based on an average of two samples

. (HR 363)

Common sense and U .S

. EPA guidance both dictate that the use of only two samples is

)4

Had IEPA followed its own rule regarding discharges to the Great Lakes, it would have had to

do a mixing zone analysis or place a monitoring requirement in the permit

. 35 Ill

. Adm. Code §

352.421

. Here, IEPA did not do a mixing zone analysis or require monitoring .

38

---

inherently unreliable . The Board routinely overturns IEPA reliance on unreliable evidence, and

should likewise do so here. See Permatreat

at *19-20 and *22-23 ; EPA v. Pollution Control

Board, 86 Ill . 2d 390, 404 (1981) (where IEPA position was not supported by any "substantial"

evidence, Board was correct to overrule IEPA) ; Pease v. Illinois EPA, PCB No. 95-118, 1995 Ill.

Env . Lexis 739 at *41 (IEPA "conjectures" that are unsupported in the record must cede to more

reliable evidence to the contrary)

.

The IEPA rule that it may use a simple average of two or more samples to determine

reasonable potential has never been approved by the Board or U

.S. EPA and clearly is not

protective

. Further, the IEPA practice could not be approved consistently with federal regulations

because the test for whether a pollutant might have the reasonable potential to violate water

quality standards has always been meant to be a "worst case" test . American Iron and Steel

Institute v

. Environmental Protection Agency, 115 F.3d 979, 1001 (D.C . Cir. 1997). Because

IEPA has not justified on the record its practice of ignoring U .S . EPA guidance and instead using

a far less protective unpublished Illinois rule, the copper limit should also be remanded for

reconsideration .

In re Washington Aqueduct Water Supply System, 2004 EPA App . Lexis 28,

*53-54

.

Accordingly, the permit should also be remanded for consideration of whether a copper

limit is necessary. Such a remand may result simply in more data being collected, a proper

consideration of a mixing zone that would comply with 35 Ill . Adm . Code § 302 .102, or a copper

limit.

C.

The Permit does not assure that existing uses will be protected .

In its antidegradation analysis, IEPA broadly concluded that the increment of increased

pollution allowed by the permit would not affect existing aquatic life or other uses of Hickory

39

---

Creek

. But there is nothing in the record to support that conclusion

. No study or any analysis of

any kind was conducted of the potential effects of the increased discharge although the increased

discharge makes up a large portion of the flow of the creek during critical low flow conditions

.

It is true that the Earth Tech report concluded that the "invertebrate community will

likely not be significantly altered by the proposed treatment plant expansion

." (HR 515) But

even if the Earth Tech report were otherwise sound, it would not be reasonable to leap from the

conclusion that the New Lenox plant was not harming invertebrates as the plant was operated in

2002 to the conclusion that it would not hurt aquatic life to dramatically increase the amount of

pollution New Lenox was discharging into the water

. The Earth Tech conclusion is like saying

that the fact that a man is not getting fat while eating 2500 calories a day means that he will not

gain weight if he begins eating 3500 calories a day

. As noted by an IEPA biologist, this

statement regarding the effect of increased discharges and the other conclusions on Page 3 of the

Earth Tech report "are all without merit

." (HR 667)

As explained by IEPA biologists at the time, the Earth Tech study should have been

redone to derive any valid conclusions from it

. IEPA certainly did not "assure" protection of

existing uses by relying uncritically on an unsupported conclusion about the future based on a

methodologically unsound study of the present .

CONCLUSION

The Board should reverse the October 31, 2003 decision of the Illinois Environmental

Protection Agency ("IEPA") to grant a National Pollutant Discharge Elimination System

("NPDES") permit (Permit No

. IL0020559) to the Village of New Lenox to increase its

discharge of pollutants into Hickory Creek from its sewerage treatment plant

. The Board should

further direct that IEPA reconsider the permit in order to establish conditions and limits

40

---

necessary to limit nutrient pollution to that consistent with the lowest technologically and

economically feasible level, and ensure that discharges from New Lenox STP #1 do not violate

the standards regarding offensive conditions, dissolved oxygen, pH and copper

.

DATED: April 21, 2006

Environmental Law and Policy Center

35 E

. Wacker Dr. Suite 1300

Chicago, Illinois 60601

312 795 3707

Albert F Ett nge (R No . 3125045)

Richard Acker (Reg

. No. 6271838)

Counsel for Des Plaines River Watershed Alliance, Livable

Communities Alliance, Prairie Rivers Network and Sierra

Club

41

---

Appendix of Authorities A

---

I of 2 DOCUMENTS

In re

: Washington Aqueduct Water Supply System

NPDES Permit No

. D00000019 ; NPDES Appeal No . 03-06

United States Environmental Protection Agency

Environmental Appeals Board

2004 EPA App . LEXIS 28

July 29, 2004

IIEADNOTE :

[*1[

Syllabus

The Washington Aqueduct Water Supply System, a division of the U

.S . Army Corps of Engineers, Baltimore Dis-

trict, provides drinking water to the Washington, D

.C. metropolitan area

. The Aqueduct "manufactures" drinking water

by taking in raw Potomac River water, allowing a large percentage of sediments to settle out of the water, and then

treating the water using a three-step process

: (1) chemically induced sedimentation, in which aluminum sulfate, a

widely

disinfectionused

flocculant,

. The sedimentation

is added

step,

to the

which

water

is

to

at

induce

the heart

further

of this

separation

appeal,

of

occurs

solids

in

from

six "sedimentation

the water

; (2)

basins"

filtrationthat

;

areand

(3)

adjacent to the Aqueduct's water treatment facilities in northwest Washington, D

.C.

Over time, the aluminum sulfate flocculant added to the sedimentation basins and the resultant settled solids build

up in the bottom of the basins and can interfere with the daily production of drinking water if they are not periodically

removed

. Accordingly, from two-to-five times per year per basin (depending on basin size and use), the Corps of Engi-

neers cleans out the basins by discharging the treated [*2[ sediments and supernatant into the Potomac River

. Histori-

cally,

to-twelve

each

hoursdischarge

.

episode has occurred over the course of several days in batch releases lasting approximately four-

On March 14, 2003, Region III of the U

.S. Environmental Protection Agency ("EPA" or "Agency") issued a revised

version of a National Pollutant Discharge Elimination System ("NPDES") permit to the Corps of Engineers' Baltimore

District authorizing the discharges from the Washington Aqueduct into the waters of the United States, pursuant to sec-

("NWI"),tion

402 of

a non-profit

the Clean Water

environmental

Act

("CWA"),organization

33 U.Sbased

.C. §

in

1342Alexandria,

. On April

Virginia,

11, 2003,

filed

the

a

National

petition

Wilderness

for review

Instituteof

Region

III's permit decision

. NWi requested on several grounds that the permit be remanded to the Region for further consid-

eration

. Region III subsequently issued a modified version of the permit on February 27, 2004, which is now before the

Environmental Appeals Board ("Board") .

Held

: NWI's petition for review of the Washington Aqueduct's NPDES permit is denied in part

; however, with re-

spect to one issue, the permit is remanded to EPA [*3j Region III for further consideration

.

Under the federal regulations implementing section 402 of the CWA, 33 U

.S .C. § 1342, permit issuers must de-

termine, among many other things, whether a given point source discharge "causes, has the reasonable potential to

cause, or contributes to" an exceedance of certain narrative and numeric criteria for various pollutants set forth in state

water quality standards

. If a discharge is found to cause, have the reasonable potential to cause,-or-contribute to such an

exceedance, the permit writer must calculate water quality-based effluent limits ("WQBELs") for the relevant pollut-

ants

. The permit writer must then compare the resulting WQBELs to any technology-based effluent limits developed for

particular pollutants and incorporate the more stringent set of effluent limitations into the NPDES permit

.

In this case, Region III conducted the "reasonable potential" analysis for the Washington Aqueduct using grab

samples of effluent that had been discharged from one of the sedimentation basins on October 21, 2002

. After detertnin-

ing the concentrations of various metals, such as aluminum, arsenic, chromium, copper, iron, lead, mercury, selenium,

and zinc, [*4[ and other pollutants in the Aqueduct's effluent, the Region determined that only aluminum had a reason-

---

2004 EPA App . LEXIS 28,

able potential to exceed District of Columbia water quality standards

. The Region therefore calculated WQBELs for

aluminum but found that the technology-based effluent limits it had developed for that metal were slightly more strin-

gent that the WQBELs

. Accordingly, Region III did not include any WQBELs in the Aqueduct's NPDES permit

.

In comments on the Aqueduct's draft permits, NWI raised questions about the representativeness of the data Region

III chose to use to conduct the Aqueduct's reasonable potential analysis

. NWI reviewed a decade of Discharge Monitor-

ing Reports from the Aqueduct, which disclosed the concentrations of aluminum, iron, and total suspended solids dis-

charged from the sedimentation basins into the Potomac River. NWI also collected several reports, prepared by the

Corps of Engineers or its contractors, that contained measured concentrations of metals and other pollutants in the Aq-

ueduct's effluent

. Finally, NWI collected its own samples of Aqueduct discharges and had them evaluated for their met-

als concentrations . NWI argued, on the basis of these data sets, that [*51 the pollutant concentrations measured by Re-

gion III in the October 21, 2002 samples were uncharacteristically low and thus provided an unsuitable basis for the

reasonable potential analysis .

In its response to these comments on the draft permits, Region III asserted that the pollutant concentrations detected

in the October 21, 2002 samples fell within the range of other samples and thus apparently could legitimately be used in

the reasonable potential analysis

. In other instances, the Region did not respond to NWT's data sets at all . On appeal,

NWI argues that Region [II responded inadequately to its comments

.

Upon review of the administrative record and applicable federal law and Agency guidance, the Board holds that

Region III clearly erred by failing to respond, adequately or in some cases at all, to significant comments NWI submit-

ted on the Washington Aqueduct's draft NPDES permits

. According to the Board, a response to comments must address

the issues raised in a meaningful fashion and be clear and thorough enough to adequately encompass the issues raised

by the conunenter. Moreover, the administrative record must reflect the permit issuer's considered judgment, meaning

that the [*61 permit issuer must articulate with reasonable clarity the reasons for its conclusions and the significance of

the crucial facts it relied upon in reaching those conclusions

. In this case, Region III chose to conduct the reasonable

potential analysis using pollutant concentration levels that appear, on the basis of competing data compiled by NWI, to

be substantially lower than worst-case or even average pollutant levels discharged from the Aqueduct, and yet the re-

cord contains virtually nothing explaining the Region's decision to proceed as it did

. The record also contains no expla-

nation or acknowledgment of the NPDES regulatory requirement that permit issuers use procedures to evaluate pollut-

ant variability in effluent samples when analyzing reasonable potential, despite NWT's comments that clearly indicated

pollutant variability was a significant issue in Aqueduct discharges

.

The Board therefore remands the NPDES permit to Region III so that the Region may revisit the reasonable poten-

tial analysis, ensure that its use of procedures to account for pollutant variability in conducting the analysis are clearly

documented in the administrative record, and respond to NWI's comments in [*7[ a meaningful fashion that is suffi-

ciently clear and thorough enough to adequately encompass the issues raised

. Review of all other issues is denied .

PANEL :

Scott C . Fulton, Ronald L

. McCallum, and Kathie A . Stein, Environmental Appeals Judges

OPINION-BY :

Opinion of the Board by Judge McCallum

OPINION

:

ORDER DENYING REVIEW IN PART AND REMANDING IN PART

In the mid-1800s, the Congress of the United States enacted legislation creating the "Washington Aqueduct Water

Supply System" ("Washington Aqueduct" or

" xlquedue " as-division of the U

.S. Army Corps of Engineers, Baltimore

District, for the purpose of providing drinking water to the Washington, D

.C. metropolitan area

. Today, the Washington

Aqueduct supplies potable water to approximately one million residents of the District of Columbia, Arlington County,

Virginia, the City of Falls Church, Virginia, and portions of Fairfax County, Virginia

.

In the course of its operation of the Aqueduct over the past few decades, the Corps of Engineers' Baltimore District

obtained a National Pollutant Discharge Elimination System ("NPDES") permit for discharges of pollutants from the

Aqueduct into the waters of the United States, pursuant to section 402 of the Clean Water Act [*81 ("CWA" or

"Act"),

33 ULSC . § 1342 . On March 14, 2003, Region III of the U

.S . Environmental Protection Agency ("EPA" or "Agency")

Page 2

---

2004 EPA App

. LEXIS 28,

issued a revised version of the NPDES permit to the Corps of Engineers for discharges from the Washington Aqueduct

into the Potomac River and Rock Creek .

On April 11, 2003, the National Wilderness Institute

("NWI"), a non-profit environmental organization based in

Alexandria, Virginia, filed a petition for review of Region III's permit decision

. NWI requested on several grounds that

the permit be remanded to the Region for further consideration

. Region III subsequently issued a modified version of

the permit on February 27, 2004, rd which is now before the Environmental Appeals Board ("Board")

. For the reasons

set forth below, we remand the Washington Aqueduct's NPDES permit to the Region for further consideration consis-

tent with this decision .

1 . BACKGROUND

A

. Statutory and Regulatory Background

In 1972, Congress enacted the CWA "to restore and maintain the chemical, physical, and biological integrity of the

Nation's waters

." CWA § 101(a), 33 U.S

. C

. § 125Ila)

. To (*91 achieve this objective, the Act prohibits the discharge

of

CWA

pollutants

§ 301(a),into 33

the

U.S.C

waters

. § 1311(a)

of the

.

United

The CWA

States

permitting

unless

program

such discharge

of relevance

proceeds

in

in

the

compliance

instant case

with

is

a

the

CWA

NPDES

permitpro-

.

gram, set forth at section 402 of the CWA, 33 U .S.C. §

1342, and implementing regulations developed by EPA at 40

C.F.R. part 122

. NPDES permits typically contain provisions that incorporate or otherwise address two central CWA

which

elements1314(b)are

;

:

40

promulgated

(1)

C.Feffluent

.R. pts

.

by

limitations,

122,

states

125,

and

131which

.

approved

are established

by EPA

. See

by

CWA

EPA or

§ §

permit

301,

issuers303,

304(b),

; and (2)

33

water

U.S.C

quality

. § § 1

standards,

.311, 1313,

nI As explained in Part I .B.2

below, we stayed our consideration of NWI's April 11, 2003 petition pending

Region III's reconsideration of various portions of the revised permit

.

1*10(

Effluent limitations control pollutant discharges into the waters of the United States by restricting the types and

Cgentamounts

.F.R

.

.

CWA

of

§ 122§

particular

§

.44301(b)(1),

. Effluent

pollutants

302,limitations

33

a permitted

U.S.C

are

. §

either

entity

§ 131

"technology-based"

1(b)(1),

may lawfully

1312 .

dischargeTechnology-based

or "water

. CWA

quality-based,"

§

effluent

304(b),

limitations

33whichever

U.S.C. §

are

is

1314(b)

more

generallystrin-

; 40

developed on an industry-by-industry basis and establish a minimum level of treatment that is technologically available

and

1314(b)economically

; 40 C .F .Rachievable

. pt . 125,

for

subptfacilities

. A; see

within

40 C .F.Ra

specific

. pts. 405471

industry(effluent

. CWA

limitations

§ § 301(b),

guidelines

304(b),

for

33

various

US.C. §

point

§ 1311(b),

source

categories)

. In some cases no industry-specific effluent limitations guidelines exist, and in those instances, permit issu-

ers must use their "best professional judgment" to establish appropriate technology-based effluent limitations on a case-

by-case basis

. CWA § 402(a)(1), [*111 33 U.S

. C

. §

1342(a)(1) ; 40 C .F.R. § § 122 .44, 125

.3 .

Water quality-based effluent limitations, on the other hand, are designed to ensure that state water quality standards

are

State

met

water

regardless

quality

of

standards

the decisions

are comprised

made regarding

of three partstechnology

: (1)

and

one

economics

or more "designated

in establishing

uses"

technology-based

(i.e ., public water

limitssupply,

.

agriculture, recreation) for each water body or water body segment in the state

; (2) water quality "criteria" expressed in

numerical concentration levels for short ("acute") or longer ("chronic," "human health") exposure times and/or narrative

statements specifying the amounts of various pollutants that may be present in the water without impairing designated

uses.12

.

;

Water

and (3)

quality-based

an antidegradation

effluent

provisionlimitations,

. CWA

or

§

"WQBELs,"

303(c)(2)(A),are

derived

33 US.C

on

.

the

§ 1313(c)(2)(A)basis

of the second

; 40 C .Fcomponent

.R

. § § 131of .10-water

quality standards,

i.e .,

the numeric or narrative water quality criteria for various pollutants established for particular

water 1*121 bodies .

" -

Under the federal regulations implementing section 402 of the CWA,

33 U.S.C. § 1342,

permit issuers must deter-

mine, among many other things, whether a given point source discharge "causes, has the reasonable potential to cause,

or contributes to" an exceedance of the narrative or numeric criteria for various pollutants set forth in state water quality

standards

. 40 C.F.R. § 122 .44(d)(l)(ii)

. This regulatory requirement, sometimes described as the "reasonable potential

analysis," provides in full :

Page 3

---

2004 EPA App

. LEXIS 28,

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 per-

mitting authority shall use procedures [that] 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. If a discharge is found to cause, have the reasonable potential

1*131

to cause, or contribute to such an exceedance,

the permit writer must calculate WQBELs for the relevant pollutants

. n2 40 C.F.R. § 122.44(d)(I)(i), (iii)-(vi) .

The

permit writer must then compare the resulting WQBELs to any technology-based effluent limits developed for particu-

33

lar

Upollutants

.S.C. § §

and

1311(b)(1)(C),incorporate

the

1312more ; 40

stringent

C .F.R

.

set

§ 122of .44(d)effluent

.

limitations into the permit

. CWA § § 30 1

(b)(1)(C), 302,

(Marter,

n2

U

.

.S1991)EPA

. EPA,

has

; see

EPA/505/2-90-00I,developed

also Office

guidance

of Water,

Technical

for

Upermit

.S

. EPA,

Support

issuers

EPA-833-B-96-003,

Document

to use

for

in developing

Water

U.S.

Quality-Based

EPA

WQBELs

NPDES

. See,

Permit

Toxics

e.g.,

Writers'

Office

Control

of

ch

Man-

Wa-

. 3

ual ch . 6 (Dec . 1996) .

B . Factual and Procedural Background

f

Over the course of the last few years, EPA Region III has issued several rounds of draft and final NPDES permits

or the Washington Aqueduct and has

1*141

attempted to respond to extensive comments on these permits from an ar-

ray of governmental entities, public interest organizations, and private citizens

. Various components of the permits have

been challenged in federal court as well as before this tribunal, and some of that litigation is still ongoing

. n3 For rea-

sons of practicality and efficiency, we have chosen to limit our survey of the extensive background information in this

case to only those matters that have relevance to the specific issues we have been asked to decide

. We commend to in-

terested parties the lengthy administrative record in this case as a starting place for research and further investigation

into other details concerning the CWA and the Washington Aqueduct's NPDES-regulated discharges

.

2001)(alleging

n3

See Nat?

Endangered

Wilderness

Species

Inst . v.

Act

US

violations

.Army Corps

at

of

Washington

Eng'rs, No

Aqueduct)

. 1:01-CV-00273

;see

also

(TFH)

Nat'l

(D

Wilderness

.D.C

. filed

Inst

Feb

. v

.

.

6,

U S.Army Corps ofEng'rs,

No .1 :02-CV-01244(TFH)(D .D.C.Mar.29,2004)(order

granting motion to dismiss for

lack of jurisdiction in a citizen suit case filed in June 2002, alleging effluent violations)

.

1

*151

1

. Washington Aqueduct Operations

We begin with a brief overview of the Washington Aqueduct's operations

. The Aqueduct "manufactures" drinking

ter

water

the

to

State

by

the

taking

of

Dalecarlia

Marylandin

raw

Reservoir,

. Once

Potomac

in the

River

a forty-six-acre

Reservoir,

water at

river

two

earthen

damswater

basin

--receives

Great

situated

Falls

passive

on

and

Washington,

"pretreatment"

Little Falls,

D.CMarylandof

.'s

sorts,

northwestern

--as

and

approximatelypiping

border

the

withwa-

fifty-one percent of the sediments suspended in the water settle out, simply by virtue of gravity and the stillness of the

water, and-fl us-are_remoyed fom the water

. These sediments are periodically dredged out of the bottom of the Reser-

voir and applied to land as a high-quality soil amendment

. Meanwhile, the now-"pretreated" river water is sent from the

Dalecarlia

the McMillan

Reservoir

plant.

to one of two drinking water treatment plants in the District of Columbia

: the Dalecarlia plant and

cAt

ally

both

induced

of these

sedimentation,

plants, the

in

drinking

which aluminum

water "manufacturing"

sulfate, a widely

or treatment

used flocculant,process

consists

1*161 is

of

added

three

to the

stepswater

: (1)

to

chemi-in-

duce further separation of solids from the water ; n4 (2) filtration

; and (3) disinfection

. The sedimentation step, which is

at the heart of this appeal, occurs in "sedimentation basins" at the two water treatment plants

. The Dalecarlia plant is

Page 4

---

2004 EPA App . LEXIS 28,

served by four sedimentation basins, which are denoted "Dalecarlia Sedimentation Basins # 1 through # 4," while the

McMillan plant is served by two sedimentation basins, called "Georgetown Sedimentation Basins # I and # 2

."

n4 As EPA explains :

Flocculation refers to water treatment processes that combine small particles into larger particles,

which settle out of the water as sediment

. Aluminum sulfate (alum) and iron salts or synthetic or-

ganic polymers are generally used to promote coagulation

. Alum added to water with carbonate

alkalinity creates aluminum hydroxide in the form of a visible floc [that] settles to the bottom of

the basin

. Nutrients, silt, and organic matter sorb to the aluminum hydroxide and hydrogen ions

are produced

. This process tends to lower the pH of the water[ ;] however, if the pH remains in the

range of 6-8, the nontoxic forms of aluminum will remain

. Settling or sedimentation is simply a

gravity process that removes flocculated particles from the water

.

(MarU.S

.

.

EPA

27,

Region

2002) .

111, Fact Sheet, NPDES

Permit Reissuance, Washington Aqueduct Water Treatment

Plant 13

1

*

171

Over the course of weeks and months, the aluminum sulfate flocculant and settled solids build up in the bottom of

movedthe

sedimentation

. Accordingly,

basins

from

and

two-to-five

can interfere

times

with

per

the

year

daily

per

production

basin (depending

of drinking

on basin

water

size

if they

and

are

use),

not

the

periodically

Corps cleans

re-out

the

the basins

Potomac

by

Riverdischarging

. The Dalecarlia

the treated

basins

sediments

discharge

and supernatantthrough

Outfall

(i.e.,002,

the

which

liquid

is

sitting

located

on top

just

of

south

the settled

of the

solids)

Mary-

into

land/District of Columbia boundary and north of Chain Bridge, while the Georgetown basins discharge through Outfalls

003 and 004, which are situated south of Fletcher's Boat House and north of Georgetown University on the north/south

borders of the basins, respectively

. Historically, each discharge episode has occurred over the course of several days in

batch releases lasting approximately four-to-twelve hours

. See, e .g.,

EPA Ex . 7, at 18 .

2. Recent

Permitting History

On March 28, 2002, Region III issued a new draft NPDES permit for the Washington Aqueduct, designated for

(Marpurposes

view

.

Exhibit

27,

of

2002))

these

("EPA("First

proceedingsEx.")

Draft

5 (EPA

Permit")

1*181

Region

the

. The

"first

III,

Region

Draft

draft

also

NPDES

NPDES

issued

permitPermit

a fact

."Nosheet

See

. D00000019

EPA

explaining

Region

for

III

the

the

Response

first

Washington

draft

to

permit

Petition

Aqueductand

for

a re-Re-

quest

Sheet

for

(Marpublic

. 27, 2002))

comments

("First

on the

Draft

permitPermit

. SeeFact EPA

Sheet")Ex

.

.

7

A

(EPA

large

Region

number

III,

of

Draft

entities,

NPDES

including

Permit NoNWI,

. D00000019

submitted com-Fact

ments on the first draft permit . See

Letter from Rob Gordon, Director, NWI, to Environmental Appeals Board, Exhibit

("NWI Ex.") 3 (Apr

. 11, 2003) & EPA Ex

. 8 (NWT Comments on First Draft Permit (June 28, 2002)) ("NWT's First

Comments") .

Region III made substantial revisions to the first draft permit in response to the comments received on that version

of the permit

. On December 18, 2002, the Region issued a revised draft permit, referred to in these proceedings as the

"second draft NPDES permit," along with a response to continents document, a revised fact sheet, and a request for

the

comments

Washington

on the

Aqueduct

new draft

(Decpermit

. 17,

. See2002))

EPA

("Second

Ex

. 10 (EPA

Draft

Region

Permit")III,

;

DraftEPA

Ex

1*191

. 12

NPDES

(EPA Region

Permit

III,

NoResponse

. D00000019

to Publicfor

Comment on Washington Aqueduct NPDES Draft Permit (undated

; prob . Dec . 17, 2002)) ("RTC-on First Draft Per-

mit") ; EPA Ex. 2 (EPA Region III, Draft NPDES Permit No

. D00000019 Fact Sheet (Dec . 17, 2002)) ("Second Draft

Permit Fact Sheet")

. The Region again received extensive comments on the draft permit from a variety of parties, in-

cluding NWI . See NWI Ex

. 4 & EPA Ex . 26 (NW! Comments on Second Draft Permit (Jan

. 30, 2003)) ("NWI's Second

Comments") .

On March 14, 2003, Region III issued a final NPDES permit to the Corps for the Washington Aqueduct, along with

a response to comments on the second draft permit

. See EPA Ex

. 1 (EPA Region III, NPDES Permit No . D000000 I9,

Washington Aqueduct (Mar. 14, 2003))

; EPA Ex. 3 (EPA Region 111, Response to Public Comment on Washington

Page 5

---

2004 EPA App . LEXIS 28,

Aqueduct NPDES Revised Draft Permit (Mar. 14, 2003)) ("RTC on Second Draft Permit") . The final permit incorpo-

rated a number of modifications to address comments on various matters pertaining to sediment discharges and the

spring spawning season, emergency discharges, 1*201 genetic and habitat studies, the permit reopener clause, and re-

lated topics . See, e.g., RTC on Second Draft Permit at 715, 21 .

As mentioned in the introduction, NWI filed a petition for review of the March 14, 2003 permit with the Board on

April 11, 2003

. See Letter from Rob Gordon, Director, NWI, to Environmental Appeals Board (Apr

. 11, 2003) ("NWI

Pet'n") . Region III tiled a response to the petition for review on July 7, 2003

. See EPA Region III's Response to Petition

for Review ("EPA Resp

.") . On December 16, 2003, in response to a number of motions and other procedural develop-

ments in this case, the Board placed a stay on further proceedings in NWI's appeal while Region III reconsidered vari-

ous portions of the March 14th NPDES permit. See Order Denying Motion for Partial Remand and Staying Further Pro-

ceedings During Reconsideration of Permit Conditions (Dec . 16, 2003) .

Region III subsequently filed a motion with the Board on March 30, 2004, reporting that it had modified several

conditions of the March 14th permit and reissued the permit in final form on February 27, 2004

. See EPA's Motion for

Lifting Stay of Further Proceedings

; id. Ex . 5 (EPA Region III, 1*211 NPDES Permit No . D00000019, Washington

Aqueduct (Feb. 27, 2004)) . The Region therefore requested that the Board lift the stay of NWI's appeal

. On April 23,

2004, the Board granted the Region's motion and reinitiated proceedings in this case

. See Order Lifting Stay of Proceed-

ings (Apr . 23, 2004)

. Notably, because NWI's appeal raises issues the Region did not address during its reconsideration

and reissuance of the February 27, 2004 permit, and because the February 27, 2004 permit has superseded the March

14, 2003 permit, the final NPDES permit before us now is the February 27, 2004 pennit

. We will therefore apply NWI's

arguments to that permit

. The case stands ready for decision by the Board .

11 . DISCUSSION

A

. Standard of Review

Under the rules governing this proceeding, an NPDES permit ordinarily will not be reviewed unless it is based on a

clearly erroneous finding of fact or conclusion of law, or involves an important matter of policy or exercise of discretion

that warrants Board review

. 40 C .F.R. § 124.19(a); 45 Fed. Reg 33,290, 33,412 (May 19, 1980) ;

see In re Gov't of

D

. C. Man . Separate Storm Sewer Sys ., 10 E.A .D. 323, 341-43, 345-47, 357

(EAR 2002) [*221 (remanding portions of

NPDES permit pursuant to section 124 .19(a))

. The Board's analysis of NPDES permits is guided by 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 [permit issuer's] level ."

45 Fed

. Reg

. at 33,412 ; accord

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

The burden of demonstrating that review is warranted rests with

the petitioner. 40 C .F.R. § 124.19(a) ; In re Town of

Westborough, 10 E.A .D. 297, 304 (EAR 2002).

In permit appeals, the Board traditionally assigns a heavy burden to petitioners seeking review of issues that are

technical in nature. See, e.g., In re Phelps Dodge Corp ., 10 E.A .D

. 460, 517-19 (EAR 2002); In re Steel Dynamics, Inc.,

9 E.A .D. 165, 201 (EAR 2000) ; In re Town ofAshland

Wastewater Treatment Facility, 9 E

.A.D. 661, 667 (EAR 2001) .

As we have explained :

When presented with technical issues, we look to 1*231 determine whether the record demonstrates that

the [permit issuer] duly considered the issues raised in the comments and whether the approach ulti-

mately adopted by the [permit issuer] is rational in light of all the information in the record

. If we are sat-

isfied that the [permit issuer] gave due consideration to comments received and adopted an approach in

the final permit decision that is rational and supportable, we typically will defer to the [permit issuer's]

position . Clear error or reviewable exercise of discretion are not established simply because the petitioner

presents a different opinion or alternative theory regarding a technical matter, particularly when the

al-

ternative theory is unsubstantiated,

In re MCN Oil & Gas Co.,

Order Denying Review, UIC Appeal No . 0203, slip op

. at 25-26 n.21 (EAB Sept . 4, 2002)

(citations omitted); accord In re Three Mountain Power, L.L

.C., /0 E .A .D. 39, 50 (EAR 2001); Steel Dynamics, 9

E.A .D. at 180 n .16, 201

; In re NE Hub Partners, L . P ., 7 E .A .D . 561, 567-68

(EAR 1998), review denied sub nom. Penn

Fuel Gas, Inc . v. U.S. EPA, 185 F.3d 862 (3d Cir

. 1999) . [*241

Page 6

---

2004 EPA App . LEXIS 28,

Moreover, with respect to questions pertaining to the "representativeness" of data used as the basis for establishing

permit conditions (which is central to this appeal), the Board has repeatedly held, in the context of the Clean Air Act's

prevention of significant deterioration program, that the choice of appropriate data sets is generally left to the discretion

sets

of the

for

permitting

air quality

authorityanalysis .

largely

E.g.,

In

left

re Encogen

to discretion

Cogeneration

of permit

Facility,

authority)

8

;

In

E

.Are .D.

KnaufFiber

244, 256-57

Glass,

(EAR 1999)Gmblf

(choice

8 E .A .D

of

. 121,

data

147 (FAB 1999)

(same, but with the proviso that permit authority's decision is adequately justified in the record)

. The

Board's deference in these circumstances stems partly from the fact that selecting an appropriate data set is a technical

matter, but it also stems from the fact that EPA has issued guidelines for determining whether data is sufficiently "repre-

sentative" to be legitimately used in an air quality analysis, and permit issuers have discretion to act within the spirit of

those guidelines . See, e.g., Encogen, 8 E.A

.D. at 256 [*25]

(quoting EPA guidance that recommends consideration of

Elec

air quality

. Light

monitor

Co., 8 E .A

location

.D . 66,

and

97

data

(EAB

quality

1998)

(same)and

currentness

;

In re Kawaihae

when determining

Cogeneration

"representativeness"

Project, 7 E.A .D

of

. 107,

data)

128

; In

(FABre

Haw .

1997)

(ambient air monitoring guidelines give permit issuers discretion to allow representative data submissions on

case-by-case basis)

. Guidance of a similar nature exists to ensure effluent is meaningfully characterized for reasonable

potential purposes under the NPDES program, although the Board has not had prior cause to address that guidance in

depth . See Office of Water, U

.S. EPA, EPA/505/2-90-001,

Technical Support Document for Water Quality-Based

37,

Toxics

340

Control

& n.18

§(EAB

3, at

2002)

47-66

(noting

(Mar .

Region's

1991) ; cf

.

decision

In re Govt

that

ofD

derivation

.C. Mun

.

of

Separate

WQBELs

Storm

using

Sewer

methods

Sys

in

.,

Technical

10 E.A.D

.

Support

323, 336-

Document was not feasible due to insufficient information regarding magnitude, variation, and frequency of river and

storm 1*261 water discharge flow rates)

.

B

. Water Quality Analyses

In its appeal of the Washington Aqueduct's NPDES permit to this Board, NWi is primarily interested in the effects

the Aqueduct's activities will have on the water quality of the Potomac River

. To analyze these effects, Region III ini-

tially relied on two studies prepared by environmental consulting companies on behalf of the Corps' Baltimore District,

EPA

as well

Ex

.

as

16

on

&

supplemental

NWI Ex . 6

studies

(EA Engineering,

conducted

Science

by one of

& Technology,

the companiesInc

.

.,Second

Water

Draft

Quality

Permit

Studies

Fact

in

Sheet

the Vicinity

at 4, 18-19

of the

; see

ber

Washington

1999 Acute

Aqueduct

Toxicity

(OctTest

. 2001))Value

("2001

(Mar

.

Water

19, 2002))

Quality

("Supplemental

Studies')

;

•

EPA

Studies')

Ex. 17

; Dynamac

(Memorandum

Corp .,Reevaluating

Impacts of Sedinienta-

I Decem-

tion Basin Discharge from the Dalecarlia and Georgetown Reservoirs on the Potomac River

(Sept . 1, 1992) . These

studies included effluent toxicity testing and effluent fate and transport modeling of the Aqueduct's discharges con-

Permit

ducted

at various

Fact

from

river

Sheet

1997

flow

through

at 18conditions

. The

2001,

Region

.

as

2001

well

imposed

Water

as modeling

water

Quality

quality-based

of

Studies

discharge

ptsrestrictions

. 2-4

plumes

; Supplemental

for

in

each

the

outfallfirst

Studies

draft

[*27]

at

permit,

2-12into

; see

including

the

Second

Potomac

a

Draftprohi-River

bition

Sheet at

on

3,

sediment

5, 7, 9-12,

discharges

17-19

.

during the spring spawning season, on the basis of these studies

. First Draft Permit Fact

Region III subsequently decided, after it had received substantial public comment on the first draft permit, that it

needed "additional reliable up-to-date values for various pollutants, particularly metals, in the Washington Aqueduct's

discharge ." n5 EPA Resp

. at 7

. Apparently, prior to this time, the Region had not prepared a formal, on-the-record

analysis of the Washington Aqueduct's reasonable potential to cause an exceedance of D

.C. water quality standards for

effluentmetals

and

(i .eother

., supernatant

pollutants

and

likely

settled

to be

solids)

in the Aqueduct's

being discharged

effluentfrom

. n6

Dalecarlia

The Region

Sedimentation

therefore collected

Basin # 2

grab

on October

samples

21,of

2002,

total metals,

and analyzed

and other

those

contaminants

samples to

in

determine

the effluentthe

.

concentration

EPA Ex

. 18 (Marilyn

of

1*28]

Gower,

total suspended

Environmental

solidsScientist,

("TSS"), dissolved

U

.S . EPA,and

&

Washington

Quality Assurance,

Aqueduct Special

U .S

. EPA

Sampling

Region

Inspection

111, OASQA

ReportLaboratory

(Nov.

Report

26, 2002))

: Washington

; EPA Ex

.

Aqueduct

19 (Office

(Novof

.

Analytical

18, 2002))Services

. Labo-

ratory analysis indicated that the effluent sampless contained, among other things, aluminum at983-tnilligrams per liter

("mg/L"), iron at 39

.8 mg/L, a variety of other metals

(e.g ., arsenic, copper, magnesium, mercury, zinc) in small quanti-

ties, and TSS at 4,300 mg/L. EPA Exs

. 18-19 .

n5 NWI's comments on this issue stated, among other things

:

Page 7

---

1*29)

2004 EPA App . LEXIS 28,

Grab samples of sludge discharges from the Washington Aqueduct have indicated concentrations

of arsenic, chromium, lead, nickel, selenium, and zinc that may exceed acute, chronic, or human

health water quality standards

. The draft NPDES permit requires no testing nor imposes any limit

on these metals, several of which are carcinogens, and EPA offers no consideration of these pol-

lutants orjustification for not requiring testing or the inclusion of limits . Clearly, limits consistent

with DC Water Quality Standards are necessitated by the reasonable potential that discharges will

exceed DC standards .

NWI's First Comments at 22 .

n6 We have been unable to locate such an analysis in the materials submitted to us by the Region and

NWI,

including the first draft permit, the first draft permit fact sheet, NW I's

comments on the first draft permit, and the

Region's response to comments on the first draft permit ; nor have we found it listed in the certified index to the

administrative record . (The response to comments on the first draft permit mentions a reasonable potential

analysis, but it is the one conducted using the October 21, 2002 grab samples and as such postdates the first draft

permit.)

Indeed, the closest thing we have found to a reasonable potential analysis for the first draft permit is an

explanation in the fact sheet for that draft permit regarding proposed effluent limits for iron and aluminum

. The

Region notes in the fact sheet that it had consulted the D .C. water quality standards and found no numeric crite-

ria for aluminum and only a chronic (not an acute) criterion for iron and thus did not pursue WQBELs for either

of these pollutants. See First Draft Permit Fact Sheet at 17-19

. (For definitions of the terms "acute" and

"chronic" in the water quality context, see inn note 7 .)

Page 8

1*301

The Region proceeded to use the pollutant concentrations detected in the October 21, 2002 grab samples to analyze

the reasonable potential of the Washington Aqueduct's pollutant discharges to exceed D

.C. water quality standards, pur-

suant to 40 C .F.R. § 122.44(d)(1)(ii)

. Second Draft Permit Fact Sheet at 19 ("EPA performed a reasonable potential

analysis using the results of the October 21 sampling") ; see EPA Ex

. 20 (reasonable potential analysis) ; see D .C . Mun.

Regs. tit . 21, ch . I I (as amended May 24, 2002) (EPA Ex

. 23) (D .C. water quality standards)

. At the outset of its analy-

sis, Region III decided that of three types of numeric water quality criteria in the D

.C. standards - acute, chronic, and

human health n7

-- only the acute criteria, representing one-hour average concentrations of the pollutants, had relevance

to the Aqueduct's relatively short-duration discharges

. EPA Resp . at 14 ; EPA Ex . 20.

n7 "Acute" water quality criteria represent "the highest concentration of a pollutant to which aquatic life can

be exposed for a short period of time (one-hour (I hour) average) without deleterious effects at a frequency that

does not exceed more than once every three (3) years

." D .C. Mun . Regs. tit . 21, § 1199.1

(definition of "CMC"

or "Criteria Maximum Concentration")

. "Chronic" water quality criteria are similarly defined, except that the

time period is longer, representing a four-day average . Id.

(definition of "CCC" or "Criteria Continuous Concen-

tration")2

.

. Finally, "human health" water quality criteria are represented by a thirty-day average

. Id. § 1104

.7, tbl .

1*311

On this basis, the Region eliminated iron, antimony, and thallium from consideration in the reasonable potential

analysis because, though present in the October 21, 2002 grab samples, these metals lack designated acute criteria

in the

D.C. water quality standards, n8 EPA Resp . at 15

; see D .C . Mun . Regs . tit . 21, § 1104.7 tb1 : 2 . The Region also ruled

out a reasonable potential analysis for arsenic, cadmium, chromium, copper, lead, nickel, selenium, silver, and zinc be-

cause, though also determined to be present in the Aqueduct's effluent on October 21, 2002, these metals were not de-

tected in quantifiable amounts and/or in amounts that exceeded their respective acute water quality criteria, and thus the

Region assumed concentrations of zero for these pollutants

. See EPA Resp . at 17; RTC on Second Draft Permit at 31-

32; RTC on First Draft Permit at B

.25; EPA Ex . 20. Finally, the Region excluded mercury, though detected in the efflu-

---

2004 EPA App . LEXIS 28,

ent

Respin

. at

quantifiable

18.

amounts, because the concentration nonetheless fell below the acute criterion for that metal

. n9 EPA

Page 9

1*321

n8 Region III also contends that the D .C

. water quality standards do not have an acute water quality crite-

rion for silver. EPA Resp . at 15

. On the contrary, in the standards submitted by the Region as EPA Exhibit 23

(May 24, 2002 version), silver is assigned an acute value of e<(1 .72[ln(hardness)]-6

.52)> microgram per liter ("

[ran] g/L"), as adjusted . D.C. Mun . Regs . tit . 21, § § 1104

.7 tbl . 2, 1105.10 ; see 60 Fed. Reg. 22,229, 22,231

tbl .

2 (May 4, 1995) (conversion factors for total recoverable/dissolved metals) .

n9 An alternative version of the Region's mercury analysis is included in the second response to comments

document, in which Region III asserts that the October 21, 2002 samples of supernatant were "below the detec-

tion limit for dissolved mercury," and thus the Region assumed the concentration of mercury was zero

. RTC on

Second Draft Permit at 32

. The discrepancy may be due to different mercury measurements in supernatant ver-

sus sediments . See EPA Ex

. 18 (mercury results reported in October 21, 2002 samples, of which all measured

below quantitation limit for mercury (0

.2 [mu] g/L) except one result from south end of Dalecarlia Sedimenta-

tion Basin # 2 (where most solids settle out of river water), which measured 0

.4 [ran] g/L) ; see also D.C. Mun .

Regs. tit. 21, § 1104.7 tbl

. 2 (acute water quality criterion for mercury (expressed as total recoverable) is 2 .4

[ran] g/L)

.

The Region concluded that only aluminum, of all the metals, had a reasonable potential to cause an exceedance of

the D .C . water quality criteria

. [*33] Notably, the D .C. standards contain no numeric criteria

-- acute, chronic, or hu-

man health - for aluminum . See D.C. Mun . Regs . tit . 21, § 1104 .7 tbl . 2

. The standards do contain, however, a relevant

narrative water quality criterion, which specifies, "The surface waters of the District shall be free from substances in

amounts or combinations that * * * cause injury to, are toxic to, or produce adverse physiological or behavioral changes

in humans, plants, or animals ." Id. § 1104 .1(d)

. Region III relied on this criterion and other considerations in deciding

to adopt, for purposes of this permit, the acute criterion for aluminum included in the Great Lakes Water Quality Crite-

ria (i .e.,

750 [mu] g/L) . RTC on Second Draft Permit at 19 . The Region computed a "wasteload allocation" for alumi-

num in Washington Aqueduct effluent using this criterion,

n10 and, because the effluent concentration found in the Oc-

tober 21, 2002 grab samples exceeded the wasteload allocation, the Region proceeded to calculate WQBELs for alumi-

num. See EPA Ex

. 20 (computing average monthly limit for aluminum of 5,529 [mu] g/L (5.5

mg/L) and maximum

daily limit of 8,074 [ran] g/L (8 mg/L))

. After comparing 1*341 these WQBELs to the technology-based effluent limits

it had also derived for aluminum (i

.e ., 4 mg/L monthly average and 8 mg/L daily maximum), Region III found the tech-

nology-based limits to be slightly more stringent and therefore incorporated those limits, rather than the WQBELs, into

the permit . RTC on Second Draft Permit at 1819 ; see

EPA's Motion for Lifting Stay of Further Proceedings Ex

. 5 (EPA

Region III, NPDES Permit No . D00000019, Washington Aqueduct pts . LA- .F (Feb

. 27, 2004)) .

n 10 Region III used the following equation to compute the "wasteload allocation" for aluminum : WLA =

(WQC*(Qe+MZ*Qs)-(BC*MZ*Qs))/Qe, where "WLA"=wasteload allocation

; "WQC" = acute water quality

criterion (750 [mu] g/L)

; "Qe" = effluent flow (0 .132 cubic meters per second ("cms" )) ; "Qs" = stream flow (153

cms) ; "MZ" = acute mixing factor (0 .145) ; and "BC" = background concentration (390 [ran] g/L)

. EPA Ex . 20,

at l

. The equation yielded a wasteload allocation value for aluminum of 8,086 [mu] gIL.Id.

C. NWI's Arguments [*351 on Appeal

In two rounds of comments on draft permits for the Aqueduct, NWI attempted, in a variety of ways, to persuade

EPA Region III that it had failed to adequately evaluate the concentrations of various metals (e.g

., aluminum, arsenic,

chromium, copper, iron, lead, mercury, selenium, zinc) and TSS in the Aqueduct's discharges and, as a consequence,

failed to incorporate into the permit appropriate effluent limitations --

specifically WQBELs -- for these contaminants .

See NWI's Second Comments at 1-8

; NWI's First Comments at 18-23, 45-50 & tbls

. I-VII. Because EPA remained un-

---

2004 EPA App . LEXIS 28,

convinced that deficiencies existed in its water-quality analyses, the Region did not modify the permit in response to

these concerns. NWI therefore asks this Board to remand the permit to Region III for further analyses of water quality

issues and establishment of WQBEis .

NWI argues on two separate (though related) grounds that Region III responded inadequately to comments it sub-

mitted on the draft permits regarding the Region's "reasonable potential to cause an excecdance of water quality stan-

dards" analysis . First, NWI contends that the October 21, 2002 data Region Ill relied on to conduct the reasonable

1*361

potential analysis for the second draft permit were not representative, in terms of levels of pollutant concentrations, of

the pollutant load typically carried by discharges from the Washington Aqueduct sedimentation basins . Second, NWI

claims that Region III chose to defend its October 21, 2002 sampling results rather than consider alternative metals data

sets NWI had submitted or identified in its comments . NWI also raises a number of minor subsidiary points having to

do with federal facilities compliance agreements, nI I the Data Quality Act, and incorporation of comments by refer-

ence . We address these issues in turn below .

nil See intro note 28 .

1. Reasonable Potential analysis

a. Representativeness of October 21, 2002 Sampling Data

To begin, NWI points out that in its comments on the second draft permit, it had argued that the samples collected

by Region III on October 21, 2002, were not representative of the range of pollutant concentrations actually discharged

from Outfalls 002, 003, and 1*371 004 . NWI Pet'n at 1-3 ; .see NWPs Second Comments at I-4 . To support this argu-

ment with respect to Outfall 002, NWI reviewed ten years of Discharge Monitoring Reports

("DMRs"), from January

1992 through May 2002, for the four Dalecarlia sedimentation basins

. The DMRs reported actual discharge concentra-

tions of aluminum, iron, and TSS that were higher, NWI asserts, in virtually every instance than the concentrations re-

corded in the Region's October 21, 2002 samples

. n12 According to NWE (1) forty-eight of fifty-six values for monthly

average aluminum concentrations reported on the DMRs exceeded 983 mg/l

. (the October 21, 2002 sample value), with

the average of the monthly average values being 2,359 mg/L ; (2) fifty-four of fifty-four values for monthly average iron

concentrations reported on the DMRs exceeded 39

.8 tng/L (the October 21, 2002 sample value), with the average of

monthly average values being 688 mg/L ; and (3) fifty-three of fifty-five values for monthly average TSS concentrations

reported on the DMRs exceeded 4,300 mg/L (the October 21, 2002 sample value), with the average of monthly average

values being 20,374 mg/L

. NWI's Second Comments at 1-2 ; cf. NWI's First Comments 1*381 at 45-50 & tbls

. I-VIIL

nl2 In the period covered by the 1992-2002 DMRs, the Corps had an obligation, set forth in its NPDES

permit for the Washington Aqueduct, to monitor and report -- in DMRs -- its discharges of aluminum, iron, and

TSS to the waters of the United States . See EPA Ex

. 4 (EPA Region III, NPDES Permit No . D00000019, Wash-

ington Aqueduct § § A, C, at 2-3, 12-15 (Apr . 3, 1989))

. The Corps had no equivalent obligation in that time

frame to monitor or report Aqueduct discharges of any of the other metals of interest to NWL Accordingly, the

DMRs relied upon by NWI in this appeal contain no discharge concentrations or other specific information re-

garding pollutants of concern to NWI other than aluminum, iron, and TSS .

To support the argument with respect to Outfalls 003 and 004, NWI pointed out that EPA had "apparently made the

assumption," in its reasonable potential analysis, that a discharge from Dalecarlia Sedimentation Basin # 2 through Out-

fall 002 could adequately represent discharges from the two [*391 Georgetown Sedimentation Basins through Outfalls

003 an_d 004 . NWI's Second Comments at 2

. NWI discussed differences in management of the two sets of sedimentation_

basins, noting that the basin sizes, chemicals added, sediment retention times, means of cleaning the basins, and dis-

charge frequencies differed between the Dalecarlia and Georgetown facilities . Id. at 2-3

. NWI also alleged that DMRs

for the Georgetown basins indicate that "substantially higher pollutants on average" are discharged from the George-

town basins through Outfalls 003 and 004 than from the Dalecarlia basins through Outfall 002

. Id. at 3.

On appeal, NWI contends that Region III responded to its comments regarding Outfall 002 by stating only that the

October 21, 2002 samples were "representative of the Dalecarlia basin discharge at the time they were taken

." NWI

Pet'n at 2 (quoting RTC on Second Draft Permit at 30) . NWI argues that this response is inadequate, stating

:

Page 10

---

2004 EPA App . LEXIS 28,

NWI did not contend that the samples taken by EPA were not representative of the effluent and super-

natant that was being discharged at the event sampled by EPA but that all of the available historical data

from DMR's indicates that the [*401 concentrations detected in that event showed that the event itself is

not representative of the discharges that actually occur

. Therefore, the EPA's samples were an inappro-

priate basis for conducting [the] reasonable potential analysis .

Id.

With respect to its comments on Outfalls 003 and 004, NWI notes that Region III expressed its awareness that dis-

charges from Outfall 002 are "somewhat different" from those of Outfalls 003 and 004 but stated that those differences

"do not affect the requirements of the permit because the technology-based limitations for TSS will remove aluminum

and

(quoted

other

in

metals

NWI Pet'n

to levels

at 3)well

. NWI

below

argues

the

that

limits

this

needed

response

to protect

is also

water

inadequate

qualitybecause

." RTC on

the

Second

Region

Draft

remained

Permit

focused

at 32on

its

NWI

October

Pet'n at

21,

3 .

2002 samples of an Outfall 002 discharge rather than evaluating discharges from Outfalls 003 and 004

.

Upon examination of the record, it becomes clear that Region III provided a little more information in response to

NWI's and another commenter's concern about data representativeness than NWI admits

. The Region explained that

experienced 1*411 EPA professionals had obtained and analyzed the October 21, 2002 samples in accordance with EPA

sampling methods, chain-of-custody protocols, and quantification techniques, and that Region III believed the methods

used were reliable and appropriate for establishing effluent limits

. RTC on Second Draft Permit at 27, 30-31

. More sig-

nificantly, the Region asserted that "while the analytical results were not the highest concentrations ever recorded for

the basins, they were within the range found by other samplers (see

2001 Water Quality Studies)

." n13 Id . at 27 . The

Region amplifies this point in its response to N W I's appeal, pointing specifically to three tables in

the 2001 Water Qual-

ity Studies

that summarize chemistry monitoring data collected for the Dalecarlia sedimentation basins from 1997

through 2001 . EPA Resp . at 13 & n .7 (citing

2001 Water Quality Studies ch . 4 & tbls . 4-1 a, 4-2a,

4-3) . Region III con-

tends that the data reported in these tables demonstrate that the results for aluminum, iron, and TSS from the October

21, 2002 samples "were within the range found for other samples taken at other times from that basin" ("that basin" pre-

sumably meaning Dalecarlia [*421 Sedimentation Basin # 2)

. Id. at 13 .

n13 In addition, Region III explicitly acknowledged NWT's survey of historical DMR data for the Washing-

ton Aqueduct in its response to comments on the first draft permit

. In that instance, NWI had argued that the ten

years of DMR data revealed that the toxicity of the Aqueduct's discharges was much greater than reported in the

2001 Water Quality Studies for Outfalls 002, 003, and 004

. NWI's First Comments at 45-50 & tbls . I-VII. The

Region rejected NWI's argument on the ground that relative toxicity could not validly be assessed by comparing

historical average discharge concentrations reported on DMRs to toxicological evaluations of discharges con-

ducted using numeric water quality criteria for individual pollutants

. RTC on First Draft Permit at B40-42

. The

Region did not explain why such a comparison is invalid

. Instead, the Region simply stated that the Corps' con-

tractor who prepared the 2001 Water Quality Studies

performed the toxicological studies in accordance with

EPA methods . See id.

In its second round of comments, NWI altered its DMR-based argument to challenge the representativeness

of the new data set (i.e

., "new" since issuance of the first draft permit) Region III used to conduct the reasonable

potential analysis

. Because this argument is different than the argument made in its first set of comments, in that

it targets a different data set (the October 21, 2002 grab sample data rather than the

2001 Water Quality Studies

toxicity data) from a different angle (i .e.,

degree of toxicity versus representativeness of data in a reasonable po-

tential context), we cannot find that the Region's response to NWI's first DMR-based comments constitutes a re-

sponse to NWI's second DMR-based comments .

[*431

In light of Region III's assessment, on the basis of the

2001 Water Quality Studies, that the October 2002 samples

could serve as an adequate data set upon which to conduct the reasonable potential analysis, we turn our attention to the

Page I I

---

2004 EPA App . LEXIS 28,

Studies report itself. Chapter 4 of the

Studies, entitled "Effluent Chemical Characterization," summarizes existing grab

sample data collected by Aqueduct staff from 1997 through 2001 in tables 4-1 and 4-2, n14 as well as six samples col-

lected for effluent toxicity testing purposes in table 4-3 . nl5 The data reveal three matters of relevance to the issue be-

fore us .

Page 12

1*441

ii 14 It is possible that some or all of these data might also have been reported on Washington Aqueduct

DMRs for the relevant years, as Aqueduct staff routinely collected grab samples of effluent, chemically analyzed

the samples for their aluminum, iron, and TSS concentrations, and reported the results on DMRs

. See 2001 Wa-

ter Quality Studies § 4.1, at 4-I to -3 (discussing use in Studies of"existing Aqueduct effluent chemistry data") ;

see also EPA Ex. 4 (EPA Region Ill, NPDES Permit No . D00000019, Washington Aqueduct § § A, C, at 2-3,

12-15 (Apr. 3, 1989)) (setting forth monitoring and DMR reporting requirements for TSS, aluminum, and iron) .

n15 According to the Studies report, which covers the period 1997-2001

:

Discharge samples from the Dalecarlia and Georgetown basins * * * were col-

lected to be representative of the "worst-case" solids discharge concentrations that

would exist during a discharge event

(i.e ., samples were collected at Dalecarlia

when hose cleaning operations were pushing out the largest masses of solids, and

at Georgetown when the front end loaders were actively pushing solids into the

conduit from the deeper areas of the reservoir .

2001 Water Quality Studies § 3 .2 .1, at 3-2 .

First, we are struck by the variability in the concentrations of aluminum, iron, and TSS the

2001 Water Quality

Studies

reports as being discharged from the Aqueduct's sedimentation basins . The grab sample data collected by Aque-

duct staff and included in table 4-2 reveal that from 1997-2001, the average yearly concentrations of aluminum, iron,

and TSS discharged from the four Dalecarlia sedimentation basins varied from 651 to 4,180 mg/L

1*451 for aluminum,

47.3 to 1,400 mg/L for iron, and 5,020 to 48,900 mg/L for TSS

. n16 2001 Water Quality Studies tbl . 4-2a. The variation

is even more dramatic when discharges from the Georgetown sedimentation basins are included

(i.e ., 26 to 8,250 mg/L

for aluminum

; 4 to 1,400 mg/L for iron ; and 377 to 69,452 mg/L for TSS) .

Id

.

tbls

. 4-2a, -2b

. In addition, four other

data points collected in 1999-2001 for toxicity testing purposes indicate discharges from Dalecarlia Sedimentation Ba-

sins # 2 and # 3 of 270 to 1,830 mg/L of aluminum, 69 to 118 mg/L of iron, and 2,500 to 8,030 mg/L ofTSS

. Id. tbl . 4-

3

. Given this wide variability in discharge concentrations of these three pollutants, which NWI also identified, and as-

suming that it is scientifically valid to compare the October 2002 sampling data to these data (as the Region suggests we

do, see EPA Resp . at 13 & n.7),

n17 we conclude that the Region is generally correct in asserting that the October 2002

sampling data, which reported an aluminum concentration of 983 mg/L, an iron concentration of 39

.8 mg/L, and a TSS

concentration of 4,300 mg/L, fall within the range of samples reported in the

2001 Water Quality Studies. 1*461 nl8

n16 This same data set indicates that the average

yearly concentrations discharged from Dalecarlia Sedi-

mentation Basin # 2 alone varied from 800 mg/L to 1,490 mg/L for a uminum, 6T

.-4 ing/L to 372 mg/L for iron,

and 5,520 mg/L to 14,400 mg/I, for TSS

.

2001 Water Quality Studies tbl . 4-2a .

n17 In this regard, it appears that tables 4-la, 4-lb, 4-2a, and 4-2b in the

2001 Water Quality Studies con-

tain grab sample data, as do the Washington Aqueduct DMRs for 1992-2002 that NWI summarized

. See 2001

---

[*47]

2004 EPA App . LEXIS 28,

Water Quality Studies § 4.1, at 4-1

; EPA Ex. 4 (EPA Region III, NPDES Permit No

. D00000019, Washington

Aqueduct § § A, C, at 2-3, 12-15 (Apr . 3, 1989))

. EPA also collected the October 21, 2002 effluent using the

grab sample technique . EPA Ex . 18

. It would therefore appear to us that comparisons between these data sets

can legitimately be made

. However, lacking full development of this issue in the briefs before us, we decline to

rule on the matter and determine only that it "appears" the numbers are variable and, as set forth below, the Oc-

tober 21, 2002 samples contain low-end pollutant concentrations .

n18 Notably, the 39

.8 mg/L iron value falls below the average iron concentration ranges for the Dalecarlia

basins, but it falls within the wider range reported for the Georgetown basins

.

Page 13

Second, although the evidence seems to support Region III's observation that the October 21, 2002 data fall within

the range of other samples, at least for aluminum, iron, and TSS, the evidence also seems to indicate, as NWI argued in

its comments, that the aluminum, iron, and TSS levels in the October 2002 samples are situated on the low end of the

concentration ranges for those three pollutants . According to the

Studies, the overall discharge concentrations for the

four Dalecarlia basins during 1997-2001 averaged 2,275 mg/L for aluminum, 431 mg/L for iron, and 20,825 mg/L for

TSS . 2001

Water Quality Studies § 4 .1, at 4-I & tbl . 41a

. For Dalecarlia Sedimentation Basin # 2 alone, the discharge

4-1aconcentrations

. When compared

for 1997-2001

[*48] to

averaged

the October

1,270

21,

mg/L

2002

for

results

aluminum,

of 983

217

mg/L

mg/L

aluminum,

for iron,

39and

.8

12,300

mg/L iron,

for

and

TSS

.

4,300

n19 Id

TSS

. tbl--

.

and again making the assumption that these data set comparisons are scientifically appropriate

-- these figures establish

that the October 2002 concentrations of aluminum, iron, and TSS are substantially lower than average discharges of

these three pollutants through Outfall 002 analyzed in the 2001 Water Quality

Studies . Notably, moreover, the mean

concentration values from the 2001 Water Quality Studies

report are closer in magnitude to the average values com-

puted by NWI from the Aqueduct's 1992-2002 DMRs

(i.e ., 2,359 mg/L for aluminum, 688 mg/L for iron, and 20,374

mg/L for TSS) than they are to the October 2002 concentrations used in Region III's reasonable potential analysis

.

n19 It is perhaps significant that these Dalecarlia Sedimentation Basin # 2 averages are themselves lower

than the concomitant average concentration levels for Dalecarlia Sedimentation Basins # 1, # 3, and # 4 and

Georgetown Sedimentation Basin # l

. See 2001 Water Quality Studies tbls. 4-1 a, 4-lb (summarizing chemistry

monitoring data for 1997-2001)

.

[*49]

Third, the Corps' contractor that prepared the 2001

Water Quality Studies

noted, "It should be understood that be-

cause of the way the basins and reservoirs are cleaned (fire hoses at Dalecarlia and front end loaders at Georgetown),

grab sample data can be quite variable from minute to minute

. Thus, mean effluent concentration data are probably the

most reliable when evaluating the discharges ." 2001 Water Quality Studies §

4.1, at 4-1 . The Region acknowledged this

statement in its response to comments on the first draft permit and thus was aware that, given the special circumstances

at the Washington Aqueduct, single grab sample concentrations could be less reliable when characterizing effluent than

averages of multiple grab sample concentrations. See

RTC on First Draft Permit at B-42 (because of variability of grab

sample data, "mean effluent concentration data were considered more reliable")

.

In summary, although Region III indicated that the 2001 Water Quality Studies

supported its choice of data for the

reasonable potential analysis, the evidence presented in that document instead raises questions about that choice . We

therefore are hesitant to grant deference to [*50] the Region's data choice in this regard, as we otherwise might have

been inclined to do . See In re Haw.

Elec. Light Co. ; 8 E.A .D . 66, 97-105 (EAB 1998) (remanding air permit where per-

mit issuer failed to respond adequately to comments questioning representativeness of air quality data used to establish

permit conditions) ; cf In re

Encogen Cogeneration Facility, 8 E.A .D . 244, 256-57 (EAB 1999)

(choice of data sets left

to discretion of permit authority) ; In re KnaufFiber Glass, GmbH, 8 E

.A .D . /21, 147 (EAB 1999) (same, but noting that

permit authority's decision must be adequately justified in the record) .

As mentioned in Part LA above, the regulations require a permitting authority to use procedures to account for pol-

lutant variability in effluent in analyzing a discharger's reasonable potential to exceed water quality standards

. 40 C .F .R.

§ 122 .44(d)(1)(ii)

. EPA has published detailed technical guidance to assist permit writers in conducting reasonable po-

---

2004 EPA App . LEXIS 28,

tential analyses and ensuring variability is considered therein. See EPA Exs . 24-25 (1985 and 1991 editions of EPA's

"'technical Support 1*511 Document for Water Quality-Based Toxics Control") . In cases where, as here, effluent moni-

toring data are available, the guidance recommends that agencies use all such data to characterize pollutant concentra-

tions in the effluent . n20 Office of Water, U .S . EPA, EPA/505/2-90-001, Technical Support Document for Water Qual-

iN-Based Toxics Control § 3.3 .1, at 51 (Mar. 1991)

. In cases where monitoring data are limited in quantity (as here

with respect to all metals other than aluminum and iron), the guidance asserts that it is "impossible to determine from

one piece of monitoring data" where in the range of effluent variability that particular data point would fall

. Id. § 3 .3 .2,

at 52 . Accordingly, EPA developed a statistical approach "to better characterize the effects of effluent variability and

reduce uncertainty in the process of deciding whether to require a [WQBEL]

." Id. The guidance explains :

This [statistical] approach combines knowledge of effluent variability as estimated by a coefficient of

variation with the uncertainty due to a limited number of data to project an estimated maximum concen-

tration for the effluent

. The estimated maximum concentration is calculated 1*521 as the upper bound of

the expected lognormal distribution of effluent concentrations at a high confidence level

.

Id., see id. box 3-2, at 53 (statistical approach includes

: (1) determining number of effluent samples for particular pol-

lutant and selecting highest value from that data set; (2) multiplying highest value by coefficient of variation for data set

(0.6 for sets containing less than six data points) ; (3) factoring in appropriate dilution ; and (4) comparing maximum

receiving water concentration result to water quality criterion to determine reasonable potential to exceed ambient stan-

dards) . EPA therefore intends the reasonable potential analysis to reflect "worst-case" effluent conditions

. Id. § 3 .3 .2, at

52 ; accord Am . Iron & Steel Inst . v. EPA, 115 F.3d 979, 1001 (D.C. Cir. 1997) (1991 Technical Support Document

reflects EPA's long-established view that reasonable potential analyses incorporate worst-case estimates of effluent

quality) .

n20 EPA guidance also suggests means by which permit agencies can determine whether WQBELs are

needed in cases where no effluent monitoring data are available . See Office of Water, U .S. EPA, EPA/505/2-90-

001, Technical Support Document for Water Quality-Based Toxics Control § 3

.2, at 50-51 & box 3-I, at 49

(Mar. 1991) .

1

*531

As far as we have been able to determine in this case, the Region's reasonable potential analysis and related docu-

ments in the record contain no discussion of the Agency's policy and practice of considering effluent variability in ana-

lyzing reasonable potential or whether or how this practice and policy was carried out in this case

. See, e.g., EPA Ex . 20

(reasonable potential analysis)

; Second Draft Permit Fact Sheet at 17-19 ; RTC on Second Draft Permit at 18-20, 30-38 .

It appears that the Region simply relied on the raw numbers reported from the laboratory on the October 21, 2002 grab

samples alone, without any statistical analysis to reduce the uncertainty caused by using single samples or to ensure that

worst-case conditions were evaluated, and without considering actual monitoring data that were available on some of

the pollutants . See EPA Ex. 20

. Certainly, NWI's and another's comments questioning this analysis brought the issues of

representativeness, data variability in general, n21 and the reasonable potential analysis to the Region's attention (albeit

without citing the relevant regulatory provision)

. As mentioned above, Region III offered a nominal response to these

1*541

comments, and, consequently, we cannot completely rule out the possibility that the Region evaluated data vari-

ability in some manner (although if it did so it did not document the evaluation in the record)

. n22 We can and do con-

clude, however, on the basis of that nominal response, that the Region failed to respond to NWI's significant comments

in an adequate fashion .

n21

Cf Am . Iron & Steel Inst. v. EPA, 115 F.3d 979, 1000 (D.C. Cir. 1997) (in order for a single data set to

be "valid and representative" for a point source affected by the EPA Water Quality Guidance for the Great Lakes

System, that data set must account for "variability" of the pollutant in the effluent)

.

n22 The lack of such an evaluation, if established, would be clear error and grounds for a remand in and of

itself See 40 C.F.R. § 122 .44(d)(1)(ii) .

Page 14

---

2004 EPA App . LEXIS 28,

[*551

Under the regulations that govern this permitting proceeding, a permit issuer must "briefly describe and respond to

all significant comments on the draft permit."

40 C .F.R. § 124.17(a)(2)

. The Board has interpreted this provision as

meaning that a response to comments need not be of the same length or level of detail as the comments and that related

comments may be grouped together and responded to as a unit

. E.g.,

In re Hillman Power Co ., 10 E.A .D . 673, 695-97 &

n .20 (EAB 2002) ; In re NE Hub Partners, L.P., 7 E.A .D

. 561, 582-84 (EAB 1998), review denied sub nom . Penn Fuel

Gas, Inc . v

. U.S

. EPA, 185 F.3d

862 (3d Cir. 1999) . The Board has also held, however, that a response to comments

must address the issues raised in a meaningful fashion and that the response, though perhaps brief, must nonetheless be

clear and thorough enough to adequately encompass the issues raised by the commenter . See, e.g .,

Hillman, 10 E.A .D. at

696 n.20; In re Steel Dynamics, Inc

., 9 E.A .D . 165, 174-81 (EAB 2000) ; In re RockGen Energy Ctr

., 8 E.A .D . 536, 555-

58 (EAB 1999) ; [*561

In rc Tallmadge Generating Station, Order Denying Review in Part and Remanding in Part, PSD

Appeal No . 02-12, slip

op. at 8-12, 22-28 (EAB May 21, 2003) . Moreover, the administrative record must reflect the

permit issuer's "considered judgment," meaning that the permit issuer must articulate with reasonable clarity the reasons

for its conclusions and the significance of the crucial facts it relied upon in reaching those conclusions

. In re Ash Grove

Cement Co., 7 E.A.D . 387, 417-18 (EAB 1997); In re Austin Powder Co.,

6 E.A.D . 713, 720 (EAB 1997) .

In the case before us, the NPDES regulations mandate use of procedures to evaluate pollutant variability in effluent,

yet Region III chose to conduct the reasonable potential analysis using pollutant concentration levels that appear to be,

as NWI pointed out in its comments, substantially lower than worst-case or even average pollutant levels discharged

from the Aqueduct

. The Region's response to the comments questioning the validity of this approach --

in which it

stated that the pollutant concentrations detected in samples collected on one day in October 2002, from one of [*571 the

six sedimentation basins at the Aqueduct, "fall within the range of other samples" and thus apparently could legitimately

be used in a reasonable potential analysis -- is, at least without further elaboration or explanation, an insufficient justifi-

cation for the Region's decision, considering the weight of the evidence in the record that seems to indicate much higher

average (and even higher worst-case) discharge levels for three of the targeted pollutants and potentially others

. n23 We

therefore hold that the Region failed to comply with 40 C .F.R . § 124

.17(a)(2) (i .e ., the duty to respond to significant

comments) in responding to NWI's comments on data representativeness and in so doing clearly erred

. See Steel Dy-

namics, 9 E .A .D. cat 174-81

(permit issuers must adequately document their decisionmaking processes) ; RockGen, 8

E.A .D. at 555-58

(permit issuers must give "thoughtful and full consideration" to public comments before making final

permit determinations) ; In re KnaufFiber Glass, GmbH, 8 E.A

.D. 121, 134-42 (EAB 1999) (remand appropriate where

comments raised legitimate questions [*581 but were rejected by permit issuer without adequate explanation)

.

n23 With respect to metals other than aluminum and iron, we can do no more at this juncture than recognize

that the Region indicated there is a connection of some kind between the level of TSS measured in effluent and

the level of metals in their solid form suspended in that effluent . See

RTC on Second Draft Permit at 24 ("the re-

duction or removal of TSS will remove or reduce aluminum and the other metals in the discharge")

; RTC on

First Draft Permit at C

.3 ("the removal of TSS required by the effluent limits for this parameter * * * will re-

move much of the aluminum in the discharges") .

b . Metals Data Sets

Next, NWI notes that in comments on the second draft permit, it had argued that WQBELs should be included in

the permit for a number of metals because actual measured concentrations of these metals in Washington Aqueduct dis-

charges indicated they had a reasonable potential to exceed D .C. water quality standards . NWI Pet'n at 3 . To support

[*59[ this argument, NWI submitted three sets of data showing higher quantities of various metals being discharged by

the Aqueduct into waters of the United Statesthan EPA had detected in its October 21, 2002 grab samples

. See NWPs

Second Comments at 4-7 .

The first data set consisted of samples of Aqueduct discharges taken by NWI and unspecified "others" on March

29, 2002, October 19, 2002, and November 2, 2002, and contained measurements of arsenic, copper, lead, nickel, sele-

nium, and zinc concentrations in the effluent . NWI's Second Comments at 5

. The second data set consisted of measure-

ments of chromium, lead, nickel, and zinc submitted in 1988 by the Corps of Engineers as part of an NPDES permit

renewal application . Id. at 6; NWI's First Comments at 19 ;

see NWI Ex . 13 (Corps NPDES permit application) . The

third data set consisted of cadmium, copper, lead, nickel, and zinc measurements taken by a Corps consultant in Febru-

Page 15

---

2004 EPA App . LEXIS 28,

ary 1979 . n24 N W I's Second Comments at 6 ; see NWI Ex . 14 (Camp Dresser & McKee, Inc .,

Report on Site Disposal

Study for Water Ireatment Plant

Residues, Dalecarlia Water Treatment Plant and Georgetown Reservoir (1979)) .

n24 In its first set of comments, NWI also submitted metals data for arsenic, chromium, lead, nickel, silver,

and zinc From a March 1995 study entitled "Residuals Thickening and Dewatering Pilot Study, Technical

Memorandum No

. 7," prepared by Whitman, Requardt & Associates on behalf of the Corps' Baltimore District .

NWI's First Comments at 22-23 ; see NWI Ex . 22 (pilot study)

. To our knowledge, Region III did not respond to

these data,

see RTC on First Draft Permit, and NWI did not raise the matter on appeal to this Board .

1*601

On appeal, NWI quotes Region III's response to its metals data, in which the Region acknowledged receipt of the

data and then simply stated, "EPA stands by the results of its [October 21, 20021 sampling

." NWI Pet'n at 3 (quoting

RTC on Second Draft Permit at 34)

. The Region also reiterated, in its response to NWI's comments, that its October 21,

2002 samples had been collected and tested in accordance with EPA-approved methods and protocols

. RTC on Second

Draft Permit at 27, 31

. NWI now argues that Region III's response to its comments indicate that the Region chose to

take the position "of defending the results of a particular sampling event it engaged in, almost as [if] EPA itself is the

permitter, rather than appropriately considering the information that had been provided" in the course of the public

comment process

. NWI Pet'n at 3 .

In its response to the petition for review, Region III enlarges upon its response to NWI's comments in this regard

.

According to the Region, the metals data in the 1979 technical report and the Corps' 1988 permit application "were not

useful because more recent data were available" and also because the Region had in its possession a more-recent permit

1*611

application from the Corps . n25 EPA Resp . at 19

. As for the NWI sampling data, the Region asserts that NWI

hailed to submit documentation indicating that it had "complied with the protocols for taking the samples or that the

results were validated using quality assurance/quality control procedures ." n26 Id

. The Region concludes by stating that

it did follow these protocols itself and reiterates that it "stands by the sampling results it obtained

." Id.

n25 We note in this regard that the newer application, unlike the older one, does not contain any actual met-

als

2001

measurements

permit application)but

only

.

indicates that certain metals "may be present" in the effluent . See EPA Ex

. 21 (Corps'

n26 NWI did submit several "Certificates of Analysis," prepared by Phase Separation Science, Inc

. of Bal-

timore, Maryland, and signed by Matt Cohen, a "Quality Assurance Chemist

." NWI Ex . 4 attachs. The certifi-

cates specify that Phase Separation Science, Inc

. analyzed all the metals in the samples using EPA Method

200

.8 . Id. The Region does not mention these certificates in its responses to comments or the petition for review,

and thus we lack specific briefing on the question whether the certificates constitute sufficient documentation

.

1*621

Under EPA permitting rules, N W I's submission during the comment period of three sets of metals data (two of

which consisted of data collected by the Corps or a Corps' contractor) appears to qualify as a "significant" comment to

which the Region owes consideration and at least a brief response in its response to comments document

. See 40 C .F.R .

§ 124 .17(a)(2) ; see, e .g., In re Steel Dynamics, Inc

., 9 E .A .D. 165, 180 (EAB 2000)

("an allegation that an agency un-

derestimated lead emissions, accompanied by a detailed alternative analysis of such emissions * * * is significant

enough to warrant consideration and at least some form of acknowledgment and response")

; In re Pennzoil Exploration

----&J-rod. Co ., -2 E:A-.D. 730, 732-33

(Adm'r 1989) (petitioner's 1911 map identifying underground injection wellswithin: -

boundaries of proposed project and identification of abandoned well in same area are significant comments that must be

considered and responded to by permit issuer)

. While the Region responded to the 1988 data in its response to com-

ments on the first draft permit, n27 the Region did not mention the 1979 and NWI's own metals

1*631 data even sum-

marily in the comment responses, thus leaving us to guess as to whether or not the Region dismissed these data for valid

reasons or failed to consider them . See RTC

on Second Draft Permit at 30-38 . Instead, as NWI observed, the Region

decided to focus on defending its October 2002 sampling data by asserting that it "stands by" that data, thereby seem-

ingly exhibiting an unwillingness to engage other data that might complicate the reasonable potential analysis and/or

Page 16

---

2004 EPA App . LEXIS 28,

lead to different conclusions about necessary WQBELs

. Moreover, the Region cannot through its arguments on appeal

augment the record upon which the permit decision was based . E.g.,

In re Chem . Waste Mgmt. o(Ind., Inc ., 6 E.A .D.

144, 151-52 (FAB

1995)

(rejecting permit issuer's explanation for permit condition because explanation was raised for

first time on appeal, rather than in response-to-comments document) ; In re Amoco Oil Co., 4 E.A

.D

.

954, 964 (EAB

1993) (same) .

n27 In its response to comments document, the Region stated, among other things :

Applicants are not accountable for contaminants in their raw process water, rather, only for those

contaminants [that] are added as a result of the treatment process, and only at certain concentra-

tions

. The metals of interest [here] are found in the raw process water, which contains high levels

of [T SS] and are not found to be added by the Corps in any quantity by its manufacturing process

(if they are added at all it is as low level impurities in water treatment chemicals) .

RTC on First Draft Permit at B .24. In its response to this appeal, the Region has neither relied on this passage

nor pursued this line of argument . Accordingly, we do not consider it further .

In addition, the Region also noted that the Corps' 1988 data were based on analyses of raw water coming

into the Aqueduct and thus were "not representative of the effluent ." Id. at B .27. The Region concluded :

EPA is not aware of any reliable analytical sediment or liquid effluent data [that] supports

the conclusion that the discharge has the potential to exceed [D

.C. water] quality standards for

any metals . The results of the 2001 Water Quality Studies show that there is no acute toxicity due

to the discharge. The 2001 Water Quality Studies

results for chronic toxicity are not conclusive

but appeared to support the results of the 1993 Dynamac Study[, which found little or no chronic

toxicity].

1d., see 2001 Water Quality Studies at ES-3 .

[*64[

Region III's apparent failure to consider and respond to NWI's significant comments in a meaningful fashion, cou-

pled with its belated efforts to supplement the record on appeal, is in our view clearly erroneous and grounds for a re-

mand of the permit . See, e.g, In re Weber # 4-8, UIC Appeal No . 03-01, slip op. at 6-8 (EAB Dec . 11, 2003), 11 E .A .D.

(vacating and remanding underground injection well permit on ground that "40 C .F.R. § § 124 .17 and 124 .18 are de-

signed to ensure that the decisionmaker gives serious consideration to public comments at the time of making his or her

final permit decision," even if such consideration will not necessarily alter permit decision); In re Atochem N

. Am

., Inc.,

3 E.A.D. 498, 499 (Adm r

1991) (vacating and remanding Resource Conservation and Recovery Act permit where EPA

failed to respond to public comments before issuing permit) .

Moreover, whatever the merits of the Region's arguments on appeal expounding on these issues (see supra notes

25-27), the fact remains that, as discussed in Part LA above, effluent variability must be considered in analyzing reason-

able potential to exceed water quality standards . [*651 NWI attempted to make this point with respect to metals other

than aluminum and iron by marshaling a variety of publicly available data and by collecting some of its own samples of

those metals. While the Region may have had valid reasons for finding these data unsuitable for incorporation into the

reasenaltle_patential analysis, the Region nonetheless has a legal obligation-to-take variability into account in some-fash-

ion and, as we held in Part II .C.I .a, supra,

must do so on the record on remand .

c . Conclusion

Region III clearly erred in this instance by failing to respond, adequately or in some cases at all, to significant

comments about data representativeness and the reasonable potential analysis, in violation of 40 C .F.R. § 124.17(a)(2) .

We therefore remand the permit so that the Region can revisit the reasonable potential analysis conducted for the Wash-

ington Aqueduct and ensure the analysis is clearly explained in the record and consistent with federal law . n28

Page 17

---

2004 EPA App . LEXIS 28,

n28 Because we are remanding the reasonable potential analysis, we need not reach NW I's arguments per-

taining to Region III's alleged failure to respond to NWI's comments regarding the Region's analysis of dis-

solved versus total recoverable metals . See NWI Pet'n at 4

. The Region responded to these concerns as raised

during the comment period by stating, among other things, that because "the permit limit for aluminum is tech-

nology-based, not water quality-based, (NWT's contention that Region BI's methods did not comply with D

.C.

water quality standards] is irrelevant."

RTC on Second Draft Permit at 33 (response to question G.8) . The Re-

gion may or may not find it necessary to take NWI's dissolved/total recoverable metals-related comments into

consideration in the course of revisiting the reasonable potential analysis and whether WQBELs are needed for

this permit

.

Similarly, we need not reach NWI's arguments pertaining to the Federal Facilities Compliance Agreement

("FFCA") that Region III entered into with the Corps in June 2003 regarding this NPDES permit

. The FFCA

specifies that the Corps must achieve compliance with the numeric discharge limits set forth in the NPDES per-

mit no later than March 1, 2008, for at least one of the Aqueduct's sedimentation basins, and no later than De-

cember 30, 2009, for all the basins . EPA Ex

. 22, at 6 (FFCA P 22) . On appeal, NWI notes that under the D .C.

water quality standards, a permittee may obtain a variance from a water quality standard that is the basis of a

WQBEL only if that permittee can justify, every three years through a public hearing process, that attaining the

water quality standard is not feasible for particular reasons

. D .C. Mon . Regs . tit . 21, § 1 105. 1(a)-(c) . NWI

points out that no such variance has been sought for the Aqueduct, even though the Corps will not be in compli-

ance with its numeric discharge limits (which at the moment are all technology-based) for more than three years

from the date of permit issuance

. NWI Pet'n at 1-2, 3, 5 . Again, because at this juncture it is unclear whether the

Region will determine that WQBELs are necessary for the Washington Aqueduct, we need not rule on this issue

.

We recognize that this D .C

. variance issue may become relevant in the course of the Region's revisiting the rea-

sonable potential analysis and may accordingly be considered and discussed during the course of the remand

.

1

*661

2. Other Issues

Finally, NWI raises several additional points in its petition for review

. For the reasons set forth below, we find that

the arguments made on these points lack merit, and review is denied on their basis,

a . Data Quality Act

First, NWI asserts in its petition that Region III failed to comply with the Data Quality Act n29 in conducting the

reasonable potential analysis and calculating WQBELs

. NWI Pet'n at 1, 3, 5 . The Region observes that

NWI did not

raise this argument in its first or second set of comments on the draft permits

. EPA Resp . at 21 . Moreover, the Region

notes that NWI did not demonstrate in its petition that any other

party raised this issue during the public comment peri-

ods

. Region III states that failure to raise an issue during the public comment period and failure to show that any other

party

Mar.19(a).

raised

21,

;

In

2002))re

the

City

.

issue

of Phoenix,

precludes

9

a

E.Apetitioner

.D

. 515,

from

524

raising

(EAB 2000),

the issue

appeal

in

dismissed

a permit appealper

stipulation,

. Id. (citing

No40 .

C01-70263

.F.R

. § §

(9th

124Cit.13,

.

tit. V,

n29§ See515,

Treasury

114 Star

.

and

2763,

General

2763A-153

Government

to -154

Appropriations

(2000) (referred

Act

to

for

by various

Fiscal

entities

Year 2001,

as the

Pub"Data

. L. NoQuality

. 106-554,

Act," the "Information Quality Act," or "Section 515")

. EPA promulgated procedures to implement the legisla-

tion in October 2002 . See

Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integ-

rity of Information Disseminated by the Environmental Protection-Agency, 67 Fed. Reg.

63,657 (2002); EPA In-

formation Quality Guidelines, available at

http ://www.epa .gov/quality/informationguidelines .

1*671

Upon review of petitioner's two sets of comments, we agree that

NWI did not raise the Data Quality Act in those

comments, even though the existence of the statute was a reasonably ascertainable issue prior to the close of the two

comment periods on June 28, 2002, and January 30, 2003

. See 40 C.F.R. § 124.13; NWI's

Second Comments ; NWT's

First Comments

. We also agree with Region III that the petition does not identify any other parties as raising the Data

Page 18

---

2004 EPA App . LEXIS 29,

Quality Act in their comments on the draft permits . Accordingly, we deny review on this ground . See 40 C.F.R. § §

124.13, .19(a); see, e.g ., In re Kendall New Century Dev., PSD Appeal No . 03-01, slip op. at 21-22 (EAB Apr . 29,

2003), I l E .A .D. (issue regarding size and magnitude of proposed power plant not raised below, so not considered on

appeal) ; In re Phelps Dodge Cray)., 10 E .A . D . 460, 519-20 (EAR 2002) (breach of trust and fiduciary duty arguments not

raised below, so not considered on appeal) .

b. Comments Incorporated by Reference

Second, NWI concludes its petition by stating that "numerous other flaws within this permit are incorporated herein

by reference to NWI's previously [*68[ submitted comments ." NWI Pet'n at 5 . The Region retorts that attempts to raise

issues before the Board in this manner -- i .e ., via incorporation by reference of comments on a draft permit, without any

further elaboration or examination of the permit issuer's response too those comments -- must fail because such attempts

do not provide the Board with the requisite specificity and argumentation mandated by the part 124 regulations govern-

ing this proceeding . EPA Resp . at 30 (citing In re Knauf Fiber Glass, GmbH, 9 E.A .D. 1, 5 (EAB 2000); In re Adcom

Wire, 4 E.A .D. 221, 228-29 (EAB 1992)) .

We agree with the Region, as we have frequently held that 40 C.F.R. § 124.19(a) requires petitioners to clearly

identify the permit conditions they wish to challenge and present us with arguments explaining how the permit issuer's

ultimate decisions on the permit, after considering comments on the draft versions thereof, are clearly erroneous, an

abuse of discretion, or otherwise warrant review under that regulatory provision . E.g., In re Phelps Dodge Corp ., 10

E.A.D. 460, 520 (EAB 2002) (unsupported assertion 1*691 that permit issuer failed to analyze adverse effects of permit-

ted project on minority populations is not sufficient for grant of review under § 124 .19(a)); In re New England Plating

Co., 9 E.A .D. 726, 737-39 (EAB 2001) (unsubstantiated arguments provide insufficient basis for grant of review of per-

mit decision) ; In re LCP Chems., 4 E.A .D. 661, 664-65 (EAB 1993) (petitioner failed to identify specific permit condi-

tions objected to, thus providing no basis for granting review) ; Adcom Wire, 4 E.A .D. at 228-29 (incorporation of letter

by reference not sufficient for review under § 124 .19(a)) . Because N WI's incorporation of its comments on the draft

permits fails to meet the requirements of 40 C .F.R. § 124 .19(a), review on this basis is denied.

III . CONCLUSION

For the foregoing reasons, we remand this permit to Region III . The Region is directed to reopen the permit pro-

ceedings for the limited purposes of : (1) revisiting the reasonable potential analysis and ensuring that its use of proce-

dures to account for effluent variability in conducting the analysis is clearly documented in the administrative [*701

record ; and (2) responding to NWI's comments in a meaningful fashion that is sufficiently clear and thorough to ade-

quately encompass the issues raised . If the Region cannot justify the permit conditions as written (for example if it finds

WQBELs are necessary for some pollutants), it should revise them and provide a justification for the revised conditions .

Any party who participates in the remand process and is not satisfied with the Region's decision on remand may file an

appeal with the Board pursuant to 40 C .F.R. § 124.19. Any such appeal must he limited to issues within the scope of

the remand.

On all other issues, the petition for review is denied .

So ordered .

Page 19

---

Appendix of Authorities B

---

United

Stet"

On¢e ni wmer

EPA 8238-94005

.

Environmental Protection

143051

August 1994

Agency

:EPA

Water Quality Standards

Handbook :

Second Edition

Contains Update #1

August 1994

to restore and maintain the chemical .

physical, and biological integrity of the Nation's

waters .'

Section 1011a) of the Clean Water Act

PnM.aon

~~

r.

~ yey 50% reaey,a

Me

---

High-quality waters are those whose quality

exceeds that

necessary

to

protect the section

l01(a)(2) goals of the Act, regardless of

use

designation . All parameters do

nQj

need to be

better quality than the State's ambient criteria for

the water to be deemed a "high-quality water ."

EPA believes that it is best to apply

antidegradation on a parameter-by-parameter

basis . Otherwise, there is potential for a large

number of waters not to receive antidegradation

protection, which is important to attaining the

goals of the Clean Water Act to restore and

maintain the integrity of the Nation's waters .

However, if a State has an official interpretation

that differs from this interpretation, EPA will

evaluate the State interpretation for conformance

with the statutory and regulatory intent of the

antidegradation policy . EPA has accepted

approaches that do not use a strict pollutant-by-

pollutant basis (USEPA, 1989c) .

In "high-quality waters," under 131 .12(a)(2),

before any lowenng of water quality occurs, there

must be an antidegradation review consisting

of

:

• a finding that it is necessary to accommodate

important economical or social development

in the area in which the waters are located

(this phrase is intended to convey a general

concept regarding what level of social and

economic development could

be used to

justify a change in high-quality waters) ;

•

full satisfaction of all intergovernmental

coordination

and

public

participation

provisions (the intent here is to ensure that

no activity that will cause water quality to

decline in existing high-quality waters is

undertaken without adequate public review

and intergovernmental coordination)

; and

• assurance that the highest statutory and

regulatory requirements for point sources,

including new source performance standards,

and best management practices for nonpoint

source pollutant controls are achieved (this

requirement ensures that

the limited

provision for lowering water quality of high-

(8/15/94)

Chapter 4 - Anridegradarion

quality waters down to "fishable/swimmable"

levels will not be used to undercut the Clean

Water Act requirements for point source and

nonpoint source pollution control ;

furthermore, by ensuring compliance with

such statutory and regulatory controls, there

is less chance that a lowering of

water

quality will

be

sought to accommodate new

economic and social development) .

In addition, water quality may not be lowered to

less than the level necessary to fully protect the

"fishable/swimmable" uses and other existing

uses . This provision is intended to provide relief

only in a few extraordinary circumstances where

the economic and social need for the activity

clearly outweighs the benefit of maintaining water

quality above that required for

"fishable/swimmable" water, and both cannot be

achieved

. The burden of demonstration on the

individual proposing such activity will be very

high . In any case, moreover, the existing use

must be maintained and the activity shall not

preclude the maintenance of a

"fishable/swimmable" level of water quality

protection .

The antidegradation review requirements of this

provision of the antidegradation policy are

triggered by any action that would result in the

lowering of water quality in a high-quality water .

Such activities as new discharges or expansion of

existing facilities would presumably lower water

quality and would not be permissible unless the

State conducts a review consistent with the

previous paragraph . In addition, no permit may

be issued, without an antidegradation review, to

a discharger to high-quality waters with effluent

limits greater than actual current loadings if such

loadings will cause a lowering of water quality

(USEPA, 1989c) .

Antidegradation is not a "no growth" rule and was

never designed or intended to be such . It is a

policy that allows public decisions to he made on

important environmental actions

. Where the State

intends to provide for development, it may decide

tinder

this

section,

after

satisfying

the

4-7

---

Appendix of Authorities C

---

---

R

1-01

alt

1

;y=Based Effluent Lrrits

General Considerations

When determining whether WQBELs are needed in a permit, the permit writer

is required to consider, at a minimum:--(Y)- existing controls on point and nonpoint

sources of pollution

; (2) the variability of the pollutant or pollutant parameter in the

effluent ; (3) the sensitivity of the species to toxicity testing ; and (4) where appropriate,

the dilution of the effluent in the receiving water (40 CFR §122 .44(d)(ii)) . The permit

writer also must consider whether technology-based limits are sufficient to maintain

State water quality standards

. Finally, the permit writer should consider other

available data and information pertaining to the discharger (e .g., compliance history,

in-stream survey data,' dilution, data from similar facilities) in addition to effluent

monitoring data to assist in making an informed reasonable potential determination

.

6.3.2

Determining Reasonable Potential With Effluent Monitoring Data

When characterizing an effluent for the need for a WQBEL, the permit writer

should use any available effluent monitoring data as well as other information

pertaining to the discharge (e .g., type of industry, compliance history, stream surveys)

as the basis for a decision . The permit writer may already have effluent data available

from previous monitoring, or he or she may decide to require the permittee to

generate effluent monitoring data prior to permit issuance or as a condition of the

issued permit . EPA recommends monitoring data be generated prior to permit limit

development for the following reasons

: (1) the presence or absence of a pollutant can

be more clearly established or refuted ; and (2) effluent variability can be more clearly

defined

. Data collection should begin far enough in advance of permit development to

allow sufficient time for conducting toxicity tests and chemical analyses .

The permit writer can use the available effluent data and a water quality model

to perform a reasonable potential analysis . The mass balance equation, presented in

Exhibit 6-2, is a simple water quality model that can be used for this analysis

. The

permit writer would use the maximum observed effluent concentration, or a statistically

projected worst-case value, to calculate a projected in-stream concentration, under

critical stream conditions

. The permit writer would then compare the projected

receiving water concentration to the applicable water quality criteria to determine

whether a water quality-based effluent limit is needed .

Chapter 6,

SEPA NPDES Permit Writers' Manual - 1 01

---

Chapter 6.

Water -Quaht =Based Effluent Limit

EXHIBIT 6-2

Basic Mass Balance Water Quality Equation

Qd-Cd

:"-QsCs = Qr

C

r

Qd

= waste discharge flow in million gallons per day (mgd) or cubic feet per second

(cfs)

Cd = pollutant concentration in waste discharge in milligrams per liter (mg/1)

Qs = background stream flow in mgd or cfs above point of discharge

Cs

= background in-stream pollutant concentration in mg/I

Qr

= resultant in-stream flow, after discharge in mgd or cfs

Cr = resultant in-stream pollutant concentration in mg/I m the strewn reach (after

complete mixing occurs)

All toxic effects testing and exposure assessment parameters, for both effluent

toxicity and individual chemicals, have some degree of uncertainty associated with

them . The more limited the amount of data, the larger the uncertainty . To better

characterize the effects of effluent variability and reduce uncertainty in the process of

deciding whether to require an effluent limit EPA has developed a statistical approach

to determining reasonable potential . This approach is described in detail in Chapter 3

of the

Technical Support Document for Water Quality-Based Toxics Control °

(hereafter referred to as the "hSD") . The statistical approach combines knowledge of

effluent variability with the uncertainty due to a limited number of data to project an

estimated maximum concentration for the effluent . This projected maximum

concentration, after considering dilution, can then be compared to an appropriate

water quality criterion to determine the need for an effluent limit .

C, = 1 .05 mg/I

Discussion :

reasonable

Since the downstream

potential for

concentrationwater

quality

(C,)standards

exceeds

to

the

be

water

exceededquality

.

criterion, there is

a

'iUSEPA (1991) . Technical Support Document for Water Quality-Based Toxics Control.

EPA-

505/2-90-001 . Office of Water Enforcement and Permits

.

1 02 -+SPA NPDES Permit Writers' Manual

Example

:

0, = Available dilution from upstream river flow

Q,

Discharge flow

= 1.2 cfs

C = Upstream river concentration

= 0.31 cfs

=

0.8 mg/I

Cd -

C, =

Statistically projected maximum discharge concentration

Receiving water concentration

= 2.0 mg/I

Water Quality Criterion

= 1 .0 mg/I

Qe C ` Q, C

(0.31 cfs) (2.0mg/l)-+ (1 .2cfs) (0

.8mg/I)

`

Q,

(1 .2cfs) , (0 .31 cfs)

---

00

=

EPA

United States

Environmental Protection

Agency

Office Of Water

(EN-336)

Technical Support Document

For Water Quality-based

Toxics Control

EPA/505/2-90-

0 0 1

PB91-127415

March 1991

---

3.3.2 Addressing Unce . .ernfy In Effluent Characterization

by Generating Effluent Monitoring Data

All toxic effects testing and exposure assessment parameters, for

both effluent toxicity and individual chemicals, have some de-

gree of uncertainty associated with them . The more limited the

amount of test-data available, the larger the uncertainty

. The

least amount of uncertainty of an effluent's impact on the receiv-

ing water exists where (1) a complete data base is available on

the effects of acute and chronic toxicity on many indigenous

species, . (2) there is a clear understanding of ecosystem species

composition and functional processes, and (3) actual measured

exposure concentrations are available for all chemicals during

seasonal changes and dilution situations

. The uncertainty associ-

ated with such an ideal situation would be minimal . However,

generation of these data can be very resource intensive .

An example of uncertainty that results from limited monitoring

data is if a regulatory authority has only one piece of effluent data

(e.g ., an LC90 of 50 percent) for a facility. Effluent variability in

such a case, given the range of effluent toxicity variability seen in

other effluents, may range between 20 percent and 100 percent

(see Appendix A) . It is impossible to determine from one piece of

monitoring data where in this range the effluent variability really

falls . More monitoring data would need to be generated to

determine the actual variability of this effluent and reduce this

source of uncertainty .

To better characterize the effects of effluent variability and reduce

uncertainty in the process of deciding whether to require an

effluent limit, EPA has developed the statistical approach de-

scribed below

. This approach combines knowledge of effluent

variability as

estimated by a coefficient of variation with the

uncertainty due to a limited number of data to project an esti-

mated maximum concentration for the effluent . The estimated

maximum concentration is calculated as the upper bound of the

expected lognormal distribution of effluent concentrations at a

high confidence level . The projected effluent concentration after

consideration of dilution can then be compared to an appropri

ate water quality criterion to determine the potential for exceed-

ing that criterion and the need for an effluent limit .

The statistical approach has two parts

. The first is a characteriza-

tion of the highest measured effluent concentration based on the

desired confidence level . The relationship that describes this is

the following :

Fin = (I -confidence level)1 /"

where pn

is the percentile represented by the highest concentra-

tion in the data and n is the number of samples. The following

are some examples of this relationship at a 99 percent confidence

level :

•

The largest value of 5 samples is greater than the 40

percentile

•

The largest value of 10 samples is greater than the 63

percentile

•

The largest value of 20 samples is greater than the 79

percentile

•

The largest value of 100 samples is greater than the 96

percentile.

The second part of the statistical approach is a relationship be-

tween the percentile described above arid the selected upper

hound of the lognormal effluent distribution . EPA's effluent data

base suggests that the lognormal distribution well characterizes

effluent concentrations (see Appendix E) . For example, if five

samples were collected (which represents a 40th percentile), the

coefficient of variation is 0.6, and the desired upper bound of the

effluent distribution is the 99th percentile, then the two percen,

tiles can he related using the coefficient of variation (CV) as shown

below

:

C99

exp(2 .326a-0.592)

C40

exp(-0 .2589

-

0 .50 2 )

where a-=1n (CV2 +1) and 2

.326 and -0 .258 are the nornialdistri-

bution values for the 99th and 40th percentiles, respectively

. The

use of the 99th percentile is for illustrative purposes here

. Al-

though it does represent a measure of the upper bound of an

effluent distribution, other percentiles could be selected by a

regulatory agency. The relationship shown above can be calcu-

lated for other percentiles and CVs by replacing the values in the

equation .

Tables 3-1 and 3-2 show the combined effects of both parts for a

99-percent confidence level and upper bounds of the 99th arid

95th percentiles, respectively

. The factors shown in the tables are

multiplied by the highest concentration in an effluent sample to

estimate the maximum expected concentration .

This procedure can be used for both single and multiple dis-

charges to the same receiving waterbody . This is accomplished

for multiple dischargers by summing the projected RWCs for the

pollutant or pollutant parameter of concern from each individual

discharger, and comparing it to the water quality standard. This

involves an assumption of conservative additivity of the pollutant

after discharge, which may not, accurately reflect the true behav-

ior of the toxicant . To overcome this, and to further refine the

proportional contribution of each discharger and the resultant

limits, the permitting authority should supplement this evaluation

with multiple source WLA modeling and/or ambient water con-

centration monitoring .

3.3.3

Effluent Characterization for Whole Effluent Toxicity

Once an effluent has been selected for whole effluent toxicity

characterization after consideration of the factors discussed above,

the regulatory authority should require toxicity testing in accor-

dance with appropriate site-specific considerations and the rec-

ommendations discussed below . In the past 5 years, significant

additional experience has been gained in generating effluent

.

toxicity data upon which to make decisions as to whether

or

not :

an effluent will cause toxic effects in the receiving water in bout`

freshwater and marine environments .

---

Table 3-1

. Reasonable Potential Multiplying Factors : 99% Confidence Level and 99% Probability Basis

Table 3-2 . Reasonable Potential Multiplying Factors : 99°70 Confidence Level and 95% Probability Basis

57

Number of

Samples 0 .1

0 .4 0 .5

Coefficient of Variation

0 .2

0 .3

0 .6 0.7 0.8 0.9 1 .0

1 .1

1

.2

1 .3

1 .4

1 .5

1 .6

1 .7 1 .8 1 .9 2.0

1 .6 2.5 3.9 6.0 9.0 13 .2 18.9 26.5 36.2 48.3 63.3 81 .4 102.8 128.0 157.1

90.3 227.8 269.9

316.7

368.3

2

1 .4 2 .0 2 .9 4

.0

5 .5 7 .4 9 .8 12 .7 16 .1

20

.2

24

.9

30 .3 36 .3 43 .0 50 .4 58,4 67 .2 76.6 86.7 97 .5

3

1

.4

1 .9

2 .S 3

.3 4 .4 5

.6'

7.2 8 .9 11 .0

13 .4 16 .0 19 .0 22 .2 25 .7 29 .4 33 .5 37,7 42 .3 47 .0 52 .0

4

1 .3 1 .7

2 .3 2 .9 3 .8

4

.7 5 .9 7 .2 8 .7 10 .3 12 .2 14 .2 16 .3 18 .6 21 .0 23,6 26 .3 29 .1 32 .1 35 .1

5

1 .3 1 .7 2 .1 2 .7 3 .4 4 .2 5.1 6 .2 7 .3 8 .6 10 .0 11 .5 13 .1 14 .8 16 .6 18 .4 20 .4

22 .4

24 .5 26 .6

6

1 .3 1 .6 2 .0 2 .5 3 .1

3 .8 4 .6 5 .5 6 .4 7 .5 8 .6 9,8 11 .1

12 .4 13

.8 15 .3

16 .8 18 .3

19

.9

21

.5

7

1 .3 1 .6 2 .0 2 .4 2 .9 3 .6 4 .2 5 .0

5 .8

6 .7 7

.7

8 .7

9 .7 10 .8 12 .0 13

.1

14 .4 15 .6 16 .9 18 .2

8

1 .2 1 .5 1 .9 2

.3

2

.8

3 .3 3.9 4 .6

5 .3 6 .1 6 .9

7

.8 8 .7 9 .6 10 .6 11,6 12,6 13 .6 14 .7 15 .8

9

1 .2 1 .5 1 .8 2.2 2.7 3.2 3.7 4.3 5.0

5.7 6.4

7.1

7.9 8.7 9.6 10.4 11 .3 12.2 13.1 14.0

10

1 .2 1 .5 1 .8 2 .2 2 .6 3 .0 3 .5 4 .1 4.7

5 .3 5 .9

6

.6 7 .3 8 0 8 .8

9.5

10 .3 11 .0 11 .8 12 .6

11

1 .2 1 .5 1 .8 2 .1 2 .5 2 .9 3.4 3 .9 4 .4 5 .0 5 .6 6 .2 6 .8 7 .4 8 .1

8.8

9.4 10

.1 10 .8

11 .5

12

1 .2 1 .4 1 .7 2.0 2.4 2 .8 3.2 3.7 4.2

4.7

5.2 5 .8

6.4

7.0 7 .5

8.1 8.8

9.4 10,0 10.6

13

1 .2 1 .4 1 .7 2 .0 2 .3 2 .7 3 .1 3 .6 4 .0 4 .5 5 .0 5 .5 6 .0 6 .5 7 .1

7.6 8.2 8 .7

9

.3

9 .9

- 14

1 .2 1 .4 1 .7 2 .0 2 .3 2,6 3.0 3 .4 3 .9 4 .3 4

.8

5

.2 5 .7 6 .2 6 .7 7.2 7 .7 8 .2

8

.7

9

.2

15

1 .2 1 .4 1 .6 1 .9 2 .2 2 .6 2 .9 3 .3 3 .7 4 .1 4,6 5 .0

5 .4 5 .9 _ 6.4 _ 6.8 7.3 _7 .7_ 8 .2

8

.7

16

1 .2 1 .4 1 .6 1 .9 2 .2 2 .5 2 .9 3 .2 3 .6 4 .0 4

.4

4

.8 5 .2 5 .6 6 .1

6 .5 6 .9

7

.3

7

.8

8

.2

17

1 .2 1 .4 1

.6 19

2 .1 2 .5 2 .8 3 .1 3 .5 3 .8 4

.2

4

.6 5 .0

5 .4 5 .8

6.2 6 .6 7 .0

7

.4

7

.8

18

1 .2 1 .4 1 .6 1 .8 2 .1 2 .4 2 .7 3 .0 3 .4 3 .7 4 .1 44 4 .8 5 .2

5 .6

S .9 6 .3 6 .7 7 .0 7 .A

19

1

.2 1 .4 1 .6 1 :8 2_1

24

2

.7

3

.0 3 .3 3 .6 4 .0 4 .3 4 .6 5 .0 5 .3

5 .7 6 .0 6 .4 6 .7 7 .1

20

1 .2

1 .3 1 .6

1,8 2

.0 2 .3

2

.6 2 .9 3 .2 3 .5 3 .8 4 .2 4 .5 4 .8 5 .2 5 .5 5 .8 6 .1 65 6 .8

Number

Samplesof 0 .1 0 .2 0 .3 0 .4 0 .5 0 .6 0 .7 0 .8

Coefficient of Variation

_

0 .9

1,0

1 .1

1 .2 1 .3 1 .4 1,5

1 6 1 .7 1 .8

1 .9 2.0

1

1 .4 1 .9 2 .6 3 .6 4 7

6

.2

8

.0 10

.1

12 .6 15 .5 18 .7 22 .3 26 .4 30 .8 35 .6 40 .7 46 .2 52 .1 58 .4

64

.9

2

1 .3 1 .6 2.0

2.5 3 .1

3 .8 4 .6 5.4

6 .4 7

.4 8 .5

9

.7 10 .9 12

.2

13 .6 150 16 .4

17

.9

19

.5

21

.1

3

1 .2 1 .5 1 .8 2.1 2 .5 3 .0 3 .5 4 .0

4 .6 5.2 5 .8 6.5 7.2 7 .9 8 6 9 .3 10

.0

10 .8 11 .5 12 .3

4

1 .2 1 .4 1 .7 1 .9

.2 2 .6 2.9 3 .3

3 7 4.2 4 .6 5 .0 5 .5 6.0 6.4 6.9 7.4 7 .8 8 .3 8 .8

5

1 .2 1,4 1 .6 1 .8 2 .1 2 .3 2.6 2 .9_ 3 .2 3 .6 3 .9 4 .2 4 .5 4 .9 5 .2 5 .6 5.9 6 .2 6 .6 6 .9

6

1 .1 1 .3 1 .5 1 .7 1 .9 2.1 2.4 2.6

2.9 3.1 3.4 3 .7 3 .9 4.2

4 .5

4 .7 5

.0

5 .2 5 .5 5 .7

7

1 .1

1 .3

1 .4 1 .6 1 .8

2.0 2.2

2.4

2 .6 2 .8 3 .1 3,3 3 .5 3 .7

3 .9

4 .1 4

.3

4 .5 4 .7 4 .9

8

1 .1 1 .3 1 4 1 .6 1 .7 1 .9 2.1 23 2.4 2 .6 28 3 .0 3 .2 3 .3 3 .5 3 .7 3 .9 4 .0 4 .2 4 .3

9

1 .1

1 .2

1 .4

1 .5

1,7

1 .8

2 .0

2 .1

2 .3 2 .4 2 .6 2 .8 2 .9 3 .1

3 .2 3 .4

3

.5

3 .6 3 .8 3 .9

10

1 .1 1 .2

1

.3

1 .5

.6

.7 19 2 .0

2

.2

23

2 .4 26 2 .7 2 .8

3 .0 3 .1 3 .2 3 .3

3

.4

3 .6

11

1

.1

1 .2

1.3

1 .4

1 .6

1 .7 1 8

1 9

2 .1

2 2

2

.3 2 4 2 .5 2 .7

2,8

2 .9 3 .0 3 .1

3 .2

3

.3

12

1 .1

1 .2 1

.3

1 .4

1 .5

1 .6

1 .7 1 .9

2 .0 2 .1 2 .2

2 .3 2 .4

2.5

2 .6 2.7

2

.8

2.9 3

.0

3 .0

13

1 .1

1 .2 1 .3

1

.4

5

1

.6

1 .7

1 .8

1 .9 2 .0 2 .1 2 .2 2 .3 2 .4 2.5 2.5 2 .6 2 .7 2 .8

2

.9

14

1 .1

1 .2 1 .3

1 .4

1 .4

1 .5

1 .6

1 .7

1 .8 1 .9 2 .0 2 .1 2 .2 2 .3 2.3 2.4 . 2 .5 2.6 2 .ir 2 .7

1 .1

1 .2 1 .2

1 .3

1 .4

1 .5 1 .6 1 .7

1,8 1 .8 1 .9 2 .0 2 .1 2 .2

2.2 2.3

2 .4 2.4 2 .5 2 :5

16

1 .1

1.1

1.2

1.3

4 I 1. .5 1.6

1.6

1 .7

1,8 1

.9

1

.9 2 .0

2,1

2 .1 2.2 2 .3 2.3 2 .4

2

.4

17

1 .1

1 .1

1 .2

1 .3

.4

1 .4

1 .5

1 .6

1 .7

1 .7

1 .8 1 .9

1 .9 2 .0 2 .0 2 .1

2.2 2 .2 2 .3 2 .3

18

1 .1 1 .1

1 .2 1 .3

3 14 1 .5 1 .6

1 .6 1 .7 1 .7 1 .8 1

.9

1 .9

2.0 2 .0

2

.1 2.1

2

.2

2 .2

19

1 .1

1 .1

1.2 1 .3 1 .3

1.4

1 5

1.5

1 .6

1 .6 1 .7 1 .8

1 8

1 9 1 .9 2,0 2.0 2 .0

2 .1

2

.1

20

1 .1

1.1

1 .2

1 .2

1 .3

1 4

1 .4

1 .5

1 .5

1 .6

1 .7 1 .7 1 .8 1 .8 1 .8 1 .9 1 .9 2.0 2.0 2 .0

---

Appendix of Authorities C

---

LEXSEE 2005 EPA APP .

LEXIS 14

In re : City of Marlborough, Massachusetts Easterly Wastewater Treatment Facility

NPDES Permit No . MA-0100498 ; NPDES Appeal No

. 04-13

United States Environmental Protection Agency

Environmental Appeals Board

2005 EPA App. LEXIS 14

August 11, 2005

HEADNOTE :

1*1]

Syllabus

In a petition dated October 18, 2004, the Town of Sudbury, Massachusetts ("Sudbury") seeks review of a final Na-

tional Pollutant Discharge Elimination System Permit ("Permit") issued to the City of Marlborough, Massachusetts on

September 16, 2004

. The Permit, issued jointly by United States Environmental Protection Agency, Region I (the "Re-

gion") and the Massachusetts Department of Environmental Protection authorizes continued discharges from Marlbor-

ough's Easterly Wastewater Treatment Facility

. Sudbury seeks review of certain conditions in the Permit relating to

limitations on phosphorus discharges, and asserts that certain permit conditions, also concerning limitations on phos-

phorus, were improperly omitted from the Permit .

In particular, Sudbury raises the following seven objections to the final permit decision : (1) the use of a 60-day roll-

ing average to measure compliance with the Permit's final phosphorus limitation of 0 .1 mg/I between the months of

April and October is not sufficiently stringent to achieve water quality standards

; (2) the Permit's interim phosphorus

limit of 0

.5 mg/I between the months of April and October is not sufficient to meet water quality standards

; [*21 (3) the

Permit's use of an "interim seasonal average" limit to measure compliance with the Permit's 0

.5 mg/1 interim seasonal

phosphorus discharge limit is not sufficiently stringent to meet water quality standards

; (4) the Permit's phosphorus limit

of 0

.75 mg/I from November 1 through March 31 is not sufficient to achieve water quality standards ; (5) the Permit

should contain a winter discharge limitation applicable to orthophosphorus (dissolved phosphorus) from November 1

through March 31

; (6) the Permit impermissibly fails to require adaptive management measures to control phosphorus

discharges

; and (7) the Permit erroneously fails to provide opportunities for public review, participation, or comments

on the deliverables required by the Permit's compliance schedule .

Held: The Permit is remanded

. On remand, the Region must either provide an explanation for including the re-

quirement that the Permit's interim phosphorus discharge limitation be measured using an "interim seasonal average

phosphorus limit" or modify this requirement of the Permit (issue 3 above)

. The Region added this requirement to the

final permit without specifying its reasons

. Under 40 C .F.R. § 124 .17(a)(1), in [*3] responding to public comments,

the Region must specify the reasons for any changes to the draft permit

. The Region has failed to do so . Further, absent

such an explanation, it does not appear that the record reflects the "considered judgment" necessary to support the appli-

cable permit determination.

In addition, on remand, the Region must either demonstrate how, in light of the potential for releases of phosphorus

from sediment in the Hop Brook ponds, the Permit, as written, will ensure compliance with applicable water quality

standards, or modify the Permit to satisfy the regulatory requirements of 40 C .F.R. § 122.4(d), which prohibits issuing

a permit when permit conditions cannot ensure compliance with applicable water quality standards (issue 6 above) . Al-

though the Permit states that the facility's discharge "shall not cause a violation of the water quality standards of the

receiving waters," the record before the Board does not indicate whether the Permit's 0

.1 mg/I phosphorus limitation, by

itself, will meet the state's water quality standards . With regard to the likelihood that imposition of the 0 .1 mg/I phos-

phorus limitation will be sufficient to meet water quality standards, 1*4] the Region states that such a result may be

possible . A mere possibility of compliance, however, does not "ensure" compliance

.

---

2005 EPA App . LEXIS 14,

Sudbury's petition for review is denied in all other respects, either because the issues were not raised during the

comment period, Sudbury failed to adequately specify why the Region's responses to these issues during the comment

period were clearly erroneous, or because Sudbury has failed to convince the Board that the Region's permit determina-

tion was clearly erroneous or otherwise warrants review .

PANEL :

Scott C. Fulton, Kathie A . Stein, and Edward E

. Reich, Environmental Appeals Judges

OPINION-BY :

Opinion of the Board by Judge Stein

OPINION :

ORDER DENYING PETITION FOR REVIEW IN PART AND REMANDING IN PART

1

. INTRODUCTION

In a petition dated October 18, 2004, which it filed with the Board on October 19, 2004, nI the Town of Sudbury,

Massachusetts ("Sudbury") seeks review of a final National Pollutant Discharge Elimination System ("NPDES") n2

Permit ("Permit") issued to the City of Marlborough, Massachusetts ("Marlborough") on September 16, 2004

. See Peti-

tion for Review (Oct . 19, 2004) ("Petition")

. The Permit, issued jointly by United States Environmental Protection 1*5J

Agency, Region I (the "Region") and the Massachusetts Department of Environmental Protection ("MADEP"), n3 au-

thorizes continued discharges from Marlborough's Easterly Wastewater Treatment Facility ("Facility")

. n4 Sudbury,

which is located downstream from the Facility, seeks review of certain conditions in the Permit relating to limitations on

phosphorus discharges, as well as asserting that certain permit conditions, also concerning limitations on phosphorus,

were improperly omitted from the permit . See Petition at 2

. In a response filed on December 3, 2004, the Region argues,

inter alia,

that the Board should deny the Petition because Sudbury has not satisfied its burden of demonstrating that

review is warranted under 40 C

.F.R. § 124.19. See Response to Petitions for Review of Permit Determination at 17-24

(Dec

. 3, 2004) ("Region's Response")

. For the reasons stated below, the Permit is remanded in part and the Petition is

denied in part . n5

nI Documents are "filed" with the Board on the date they are received.

n2 Under the Clean Water Act

("CWA"), persons who discharge pollutants from point sources into waters

of the United States must have a permit in order for the discharge to be lawful

. CWA § 301, 33 U.S.C

.

§

1311 .

The National Pollutant Discharge Elimination System is one of the principal permitting programs under the

CWA .

See CWA § 402,33 U.S.C. § 1342 .

n3 Although EPA issues NPDES permits in Massachusetts, the state maintains permitting authority under

Massachusetts law.

See Mass. Gen . L . ch. 21, § 43 (2004) ; Mass . Regs

. Code tit. 314 (2004) . When the Region

issues an NPDES permit in Massachusetts, MADEP jointly issues a permit under state law .

Id. ; see also In re

Westborough, 10 E.A.D. 297, 300 n.2

(EAB 2002) .

n4 Until issuance of the present permit on September 16, 2004, Marlborough had been operating under a

permit issued in September of 1988 .

-n5 Inan

unpublished order dated March 11, 2005, the Board denied another petition for review of the Per-

mit

Appeal

in this

No

.

matter,

04-12 (Order

filed by

Denying

the City

Petition

of Marlborough,

for Review)

Massachusetts(EAB,

March

. See

11,

In2004)

re City

. For

ofMarlborough,,convenience,

and

NPDESto

the ex-

tent relevant in the present context, the Board will repeat the factual and procedural background provided in the

March I1 order .

II. FACTUAL AND PROCEDURAL BACKGROUND

Page 2

---

2005 EPA App . EEXIS 14,

The Facility is a 5 .5 million gallon per day ("mgd")

wastewater treatment 1*71 facility discharging wastewater ef-

fluent into Hop Brook

. I lop Brook then flows northeast through four instream ponds

- Hager Pond, Grist Mill Pond,

3,

Carding

Exhibit

Mill

10

Pond,

to Region's

and Steams

Response

Mill

("Fact

Pond ("the

Sheet")ponds')

. n6 The

--

Facility's

until it reaches

effluent

the

comprises

Sudbury Riverbetween

. See

2004

50% and

Fact

99%

Sheet

of theat

I-

flow in Hop Brook, depending on the time of year, and approximately 95% of the phosphorus load

. Id. at 3. It is undis-

puted that both Hop Brook and the ponds suffer from eutrophication, driven primarily by nutrients such as phosphorus

entering the Brook .

Id.

Eutrophication is a process by which a water body suffocates from receiving more nutrients

(such as phosphorus) than it can assimilate

. The excess nutrients promote the growth of nuisance algae and aquatic

plants that then decay in a process generating strong odors and resulting in lower dissolved oxygen levels

. See id

. When

left unchecked, eutrophication is a serious problem that can deplete the oxygen necessary for aquatic life to survive

. In

the present case, the problems associated with this condition include reduced aesthetic value,

1*81 odor from decaying

vegetation, severely limited usability of the ponds for recreational activities, and the degradation of the system as a suit-

able habitat for fish and other desirable aquatic fauna . See ENSR International

Nutrient Impact Evaluation ofHop

Brook in Marlborough and Sudbury, Massachusetts at l(Oct

. 2000) (R . Exh . 6) .

hibit

n6

numberThe

exhibits

.

accompanying the Region's Response will be referred to as "R

. Exh ." followed by the ex-

MADEP has designated the portion of flop Brook into which the Facility discharges as a "Class B" water body .

Fact Sheet at 2

. Under Massachusetts water quality standards, Class B waters are designated as a habitat for fish, other

aquatic life, and wildlife, and for primary and secondary contact recreation

. Further, the waters "shall be suitable for

irrigation and other agricultural uses and for compatible industrial cooling and process uses * * * [and] shall have con-

sistently good aesthetic value ." Mass. Regs

. Code tit . 314, § 4 .05(3)(b) (2004) ; Fact Sheet at 2

. In addition 1*91 to wa-

ter quality criteria specific to Class B waters, Massachusetts imposes minimum narrative water quality criteria applica-

ble to all surface waters

. In relevant part, the narrative criteria provide

:

(a) Aesthetics -

All surface waters shall be free from pollutants in concentrations or combinations that

settle to form objectionable deposits

; float as debris, scum or other matter to form nuisances

; produce ob-

jectionable

(b) Bottom Pollutants

odor, color,

or

taste

Alterationsor

turbidity-

All

; or

surface

produce

waters

undesirable

shall be

or

free

nuisance

from pollutants

species of

in

aquatic

concentrationslife

.

or combinations or from alterations that adversely affect the physical or chemical nature of the bottom,

interfere with the propagation of fish or shellfish, or adversely affect populations of non-mobile or sessile

benthic organisms .

(c) Nutrients -

Shall not exceed the site-specific limits necessary to control accelerated or cultural eutro-

phication * * *

.

Mass. Regs . Code tit . 314, § 4 .05(5)(a)-(c)

.

n7 During the permitting process, the Region determined that eutrophica-

tion caused by phosphorus loading has resulted in violations of the Massachusetts [*101 water quality standards for

Hop Brook, including the above-cited narrative water quality criteria

. See Fact Sheet at 3

. The Region found that al-

though both storm water runoff and sediment also released phosphorus into Flop Brook, "the vast majority of phospho-

rus entering Hop Brook is from the facility ." Id. at 4

. Because of the impairment, and after evaluating technical guid-

ance as well as studies about the effects of phosphorus on Hop Brook, the Region determined that a phosphorus effluent

limitation of 0

.1 milligrams per liter ("mg/I") for the period of April 1 through November 30 was necessary to achieve

the state's water quality standards . See

Permit Cond . I .A . I (R . Exh . 13) . The Permit also contains a compliance schedule

for meeting the phosphorus limit . n8 See

Permit Courts . I .A . I and .2 n.6, I .E.

n7 The state anti-degradation provisions contain an additional requirement related to cultural eutrophication

(i.e

., over-enrichment of nutrient levels caused by human activities) requiring that any existing point source dis-

charge containing nutrients in concentrations that encourage eutrophication apply the "highest and best practical

treatment to remove such nutrients ." Mass

. Regs . Code tit . 314, § 4 .04(5) (2004) .

1*111

Page 3

---

2005 EPA App

. LEXIS 14,

n8 Under the compliance schedule, full compliance with the Permit's total phosphorus limitation of 0

.1 mg/I

is required within forty-eight months of the issuance date

.

On November 13, 2001, the Region and MADEP issued a draft permit for public comment

. See R. Exh . 20. After

receiving comments, the Region, in consultation with MADEP, notified interested parties that they would revise the

draft permit and distribute a new draft permit for public comment . See Letter from Elizabeth F

. Mason, Senior Assistant

Regional Counsel, EPA Region I (Mar. 18, 2002) (R . Exh. 22)

. The Region and MADEP issued a revised draft permit

on December 12, 2003 (hereinafter "Draft Permit"), and sought public comment . See Draft Permit (R . Exh

. 23) . The

Region and MADEP held a public hearing on January 14, 2004 . See Hearing Transcript (Jan

. 14, 2004) (R . Exh . 25) . On

September 8, 2004, MADEP certified the Draft Permit in accordance with section 401 (a) of the CWA, 33 U.S.C. §

1341(a) . See

Letter from Glen Haas, Director, Division of Watershed Management, MADEP, to Brian

1*121 Pitt, Chief,

Massachusetts NPDES Permit Program Unit, U

.S. EPA Region I (Sept . 8, 2004) (R. Exh . 27) . n9 Thereafter, on Sep-

tember 16, 2004, the Region and MADEP issued the Permit along with a response to comments

. Sudbury's petition for

review followed . n10

n9 Section 401(a)(I) of the CWA requires all NPDES permit applicants to obtain a certification from the

appropriate state agency that the permit will comply with all applicable federal effluent limitations and state wa-

ter quality standards . See CWA §

401(a)(1), 33 USC. § 1341(a)(1) . The regulations provide that EPA may not

issue a permit until the state in which the discharge originates grants or waives certification . 40 C

.F.R . §

124 .53(a).

n10 With the Board's permission, the Conservation Law Foundation filed an amicus brief in this matter

.

Brief of Conservation Law Foundation, Amicus Curiae (Jan

. 28, 2005) .

III . DISCUSSION

A . Standard of Review

In proceedings under 40 C

.F.R. § 124.19(a),

the Board [*131 generally will not grant review unless the petition for

review establishes that the Permit condition in question is based on a clearly erroneous finding of fact or conclusion of

law, or involves an exercise of discretion or an important policy consideration that the Board determines warrants re-

viewSept

.

.

30,

40 C2004),

.F.R.

11

§ 124E.A.19(a).D

.

;

;

see

In re

In

Gov't

re Carlota

of D.C.

Copper

Mon .

CoSeparate

., NPDES

Storm

Appeal

Sewer

Nos

Sys

.

.,

00-23

10 E.A

&

.D

02-06,

. 323,

slip

333

op

(EAB

. at21

2002)

(EAB,

. The

Board analyzes NPDES permits guided by the preamble to the part 124 permitting regulations, which states that the

Board's power of review "should be only sparingly exercised ." 45 Fed. Reg. 33,290, 33,412

(May 19, 1980) ; accord In

re Teck Cominco Alaska, Inc ., NPDES Appeal No . 03-09, slip op

. a t 21 (EAB, June 15, 2004), 11 E .A .D. .

Agency

policy

at 21, 11

favors

E .A

.Dfinal

. ;

adjudication

Teck Cominco,

of most

slip

permits

op. at 21-22,

at the

11

regional

E.A

.D

.

level

. The

. 45

petitioner

Fed. Reg

.

bears

at 33,412

1*141

; see

the

also

burden

Carlota,

of demonstrat-slip

op.

ing

op

.

that

at I l

review

(EAB,

is

Febwarranted

. 1, 2005),

. 40

12

C

.FE

.A.R.D

. §

.

124

.

.19(a)(1)-(2) ; see In re Amerada Hess Corp .,

PSD Appeal No . 04-03, slip

In addition, a petitioner must demonstrate that any issues being raised before this Board were preserved for review

.

In so doing, a petitioner must, among other things, show that any issues being raised were raised with sufficient speci-

ficity during the public comment period . 40 C.F.R. § § 124

.13, .19(a); Carlota, slip op. at 45-46, 11 E .A.D . . This

burden rests squarely with the petitioner -

"'It is not incumbent upon the Board to scour the record to determine whether

an-issue was properly raised below ."' Amerada Hess, slip op

. at

11, 12 F

.A .D . (quoting In re Encogen Cogeneration

Facility, 8 E .A .D . 244, 250 n.10 (EAB 1999)) .

Further, as the Board has repeatedly stated, to obtain review, "petitioners

must include specific information in support of their allegations

. It is not sufficient simply to repeat objections made

during the comment period

; instead, a petitioner 'must demonstrate why the [permit issuer's] response to those objec-

tions 1*151

(the [permit issuer's] basis for its decision) is clearly erroneous or otherwise warrants review

."' In re Steel

Dynamics, Inc., 9 E.A .D. 740, 744 (EAB

2001) (quoting In re LCP Chems ., 4 E.A .D. 661, 664 (EAB 1993))

; see also

Amerada Hess, slip op at 11, 12 F .A.D . ; Carlota Copper, slip op

. at 22, 11 E .A .D. .

Page 4

---

2005 EPA App

. LEXIS 14,

B

. Sudhtoy's Petition

Sudbury asserts that certain Permit limitations relating to phosphorus discharges are clearly erroneous because they

Permit

0charge

Permit's

are

achieve

terim

ing

months

.75

not

seven

mg/I

seasonal

limit

should

of

adequate

water

final

objections

April

from

is

quality

contain

phosphorus

not

average"

November

and

to

sufficiently

satisfy

October

to

standards,

a

the

winter

limit

1

limitation

through

state

final

is

to

not

discharge

stringent

Petition

water

Permit

measure

sufficient

March

of

quality

0decision.1

at

to

31

limitation

compliance

mg/I

18-19meet

is

to

standardsnot

:

meet

between

water

;

(1)

sufficient

(2)

applicable

[*16]

water

the

quality

the

.

the

Seeuse

with

Permit's

quality

months

Petition

standards,of

to

to

the

a

achieve

ortho

60-day

standards,

of

interim

Permit's

at

April

17-28id(dissolved)

water

rolling

.

phosphorus

at

and

0

.

id

20.5

quality

In

October

at

;

average

mg/I

particular,

(4)

19phosphorus

limit

;

the

interim

standards,is

(3)

to

Permit's

not

of

the

measure

Sudbury

0sufficiently

seasonal

Permit's

from

.5

idphosphorus

mg/I

compliance

.

November

raises

at

phosphorus

use

between

20-21stringent

of

the

limit

I

;

an

with

follow-(5)

the"in-dis-theoftheto

phosphorus

through March

discharges,31,

id. at

id21-22

.

at 22-23

; (6)

;

the

and

Permit

(7) the

impermissibly

Permit erroneously

fails

fails

to require

to provide

adaptive

opportunities

management

for

measures

public

to

review,

controlpar-

each

ticipation,

of these

or

issues

comments

in turnon

the

.

deliverables required by the Permit's compliance schedule,

id

.

at 24 . We will address

1 . 60-Day

Rolling Average

April

Condition

I through

LANovember

. I of the

30final

. See

Permit

Final

includes

Permit (Ra

.

final

Exh .

phosphorus

13)

. Although

discharge

Sudbury

limitation

does not contest

of 0

.1

this

mg/I

limit,

for the

it

period

objects

of

to

a

at

footnote

18 (citing

to this

Permit

limit

Condsstating

. I .A

.

that

I andcompliance

.2 n.6) .

According

will be measured

to Sudbury,

using

by

a

using

60-day

a

rolling

60-day rolling

average limitaverage

. See

limit,

[*171

"compli-Petition

ance with the Permit during April and May cannot be determined until the June monitoring report is submitted

. Thus,

applying the 60-day rolling average limit to the months of April and May results in there being effectively no applicable

compliance measure during those months

." Id.

Sudbury argues that the 60-day rolling average limit is therefore insuffi-

phosphorus

cient to meet

limit

applicable

be measured

water

according

quality standards

to either

and

a monthly

should

average

be changed

or

to

a 60-day

require

continuous

that compliance

rolling

with

average

the 0"which

.1 mg/Iis

reported continuously and which applies year-round ." Id

. at 19.

As the Region points out, however, the Response to Comments addresses Sudbury's concerns regarding the Permit's

60-day rolling average limitation

. In particular, in response to a comment questioning whether the 60-day rolling aver-

age limit was sufficiently protective and how compliance would be determined during the first 59 days, the Region

stated:

The 60 day rolling average allows some flexibility for infrequent 1*18] short term exceedances of the

permit limit that may be difficult to prevent

. Short term exceedances are unlikely to result in a significant

response in the receiving water relative to aquatic plant growth

. Long term exceedances would likely re-

sult in a violation of the rolling average limit

. While compliance with the permit cannot be determined

until the June discharge monitoring report is submitted, compliance for the month of June and July will

porting

depend upon

requirements

good performance

for April

in

and

April

May

.

and

For

MayApril

. The

and

permit

May, in

language

addition

has

to

been

reporting

clarified

the

relative

maximum

to

dailyre-

value

I.A .2 of

for

the

the

permit)month,

.

the

For

monthly

all other

average

months,

value

the

must

maximum

be reporteddaily

value

(see

for

footnote

the month

6 for

and

Conditions

the maximum

I .A .I

60and

day rolling average value for the month shall be reported

.

Response to Comments at 17 (R

. Exh . 30)

. Thus, the Region appears to address Sudbury's concerns by providing a ra-

tionale

to

issue,

indicate

n I

for

I

See

the

why

In

rolling

the

re

Region's

Amerada

average

response

Hess

and adding

Corp

is

.,

1*191

a

PSD

requirement

Appeal

clearly erroneous

Noto

.

the

04-03,

Permit

or

slipotherwise

for

op

.

monthly

at1

warrants

l (EAB,

reportingreview,

Feb .

.

1,

Because

review

2005),

is

Sudbury

12

denied

E.A.Dhas

on

.

failedthis(pe-

titioners may not simply repeat objections made during the comment period but must demonstrate why the response to

the objections is clearly erroneous or otherwise warrants review)

.

Page 5

---

2005 EPA App . LEXIS 14,

nI I To the extent that Sudbury is objecting to any use of a 60-day rolling average, Sudbury has failed to es-

tablish that the Permit condition at issue was clearly erroneous or otherwise warrants review .

2 . Interim Phosphorus Limit

Permit Condition LA . I establishes a limitation on total phosphorus discharges of 0 .1 mg/l . The Permit, however,

contains an interim limit of 0 .5 mg/I

. In particular, the Permit states :

The pernittee shall comply with the 0.1 mg/I limit in accordance with the schedule contained in Section

E below . Upon the effective date of the permit, and until the date specified in Section E below for com-

pliance with the [*201 final limit of 0 .1 mg/I, an interim seasonal average total phosphorus limit of 0 .5

mg/I shall be met . Consistent with Section B.I

of Part 11 of the Permit, the Permittee shall properly oper-

ate and maintain the phosphorus removal facilities at the Facility to obtain the lowest effluent concentra-

tion possible

.

Permit Cond

. I .A . I and

.2 n.6. While conceding that this condition allows for only a transitional limit, Sudbury never-

theless contends that the condition is erroneous and that any interim limit should be at least as stringent as the Facility's

current operating phosphorus discharges. Petition at 19-20 . Sudbury also states that there is no basis in the administra-

tive record for the selection of the 0 .5 mg/I interim discharge limit. Id. at 20 .

In its Petition, Sudbury states that it, along with the Hop Brook Protection Association ("HBPA"), submitted com-

ments during the comment period. See Petition at 4-5 (citing "Written Correspondence of Town of Sudbury Containing

Comments on 2003 Draft Permit, dated January 23, 2004" ("Town's Comments") (attached as Exhibit C to Petition),

and "Written Correspondence of the [HBPA] Containing Comments on 2003 Draft Permit, dated January 1*211 23,

2004" ("HBPA Comments") (attached as Exhibit D to petition)) . The Petition states that "the Town's Comments and the

I IBPA Comments collectively raised the issues presented in this Petition, and provided support for those issues as out-

lined below ." Petition at 5 . Therefore, it is to these two documents that we look to determine whether Sudbury's objec-

tions to the 0 .5 mg/I interim phosphorus limitation were raised during the comment period .

After reviewing both Sudbury's and HBPA's Comments, we conclude that Sudbury's objections to the 0 .5 mg/I in-

terim phosphorus limitation were not raised below. Sudbury's comments make no mention of the interim limit . The only

mention of the interim limit in HBPA's comments concerns the length of time the interim limitation will remain in ef-

fect. In particular, IIBPA takes "specific issue" with, among other things, "the permit requirement which grants to the

City an inordinately long time to reduce phosphorus levels in the discharge to the [applicable] discharge limitations *

*." HBPA Comments at 7 . HBPA asserted that the permit should accelerate the deadlines for compliance with the more

stringent limitation. Id. at 13 . n12 Nowhere in its 1*221 comments does HBPA raise the specific issues on which Sud-

bury now seeks Board review . Because these issues were reasonably ascertainable but were not raised during the public

comment period on the Draft Permit, the issues have not been preserved for review by the Board. 40 C .F .R. §

124.19(a) ; In re BP Cherry Point, PSD Appeal No . 05-01, slip op. at

14-15 (EAB, June 21, 2005), 12 E .A .D

. ; see

also In re Encogen Cogeneration Facility, 8 E .A .D . 244, 250 n . 10 (EAB 1999) (burden is on the petitioner to establish

that issues were raised during the comment period

; "It is not incumbent upon the Board to scour the record to determine

whether an issue was properly raised below .") . Accordingly, review is denied on these issues, n13

nl2 In its Response to Comments, the Region responded to HBPA's comments regarding acceleration of the

deadline for compliance with the Permit's 0 .1 mg/I phosphorus limitation as follows :

While we acknowledge the long delay in issuing the permit, the agencies believe that the 48

month schedule is a reasonable schedule . Within 24 months the permittee must appropriate fund-

ing, complete planning and design of the necessary facility upgrades, and initiate construction .

The permittee then has 24 months to complete construction and learn how to operate the up-

graded facility in order to achieve the permit limits . While it might be possible to reduce the

Page 6

---

2005 EPA App

. LEXIS 14,

schedule by a few months, it is unlikely that it could be reduced enough such that the 0

.1 mg/I

phosphorus limit could be achieved during the critical growing season in 2007 .

Response to Comments at 13-14 . Sudbury does not assert, and the record does not reflect, that the Region's re-

sponse on this issue was clearly erroneous or otherwise warrants review .

[*231

n13 As the Board has recently stated, the requirement that an issue must have been raised during the com-

ment period in order to preserve it for review is not an arbitrary hurdle placed in the path of potential petitioners .

See In re BP Cherry Point, PSI) Appeal No . 05-01, slip op. at

14-15 (EAB, June 21, 2005), 12 E .A.D . .

Rather, the requirement serves an important function related to the efficiency and integrity of the overall admin-

istrative permitting scheme. Id. The intent of the rules is to ensure that the permitting authority first has the op-

portunity to address permit objections and to give some finality to the permitting process

. In re Suite]- Power

Plant, 8 E.A

.D. 670, 687 (EAR 1999)

. As we have explained, "'the effective, efficient and predictable administra-

tion of the permitting process demands that the permit issuer be given the opportunity to address potential prob-

lems with draft permits before they become final."' In re Teck Cominco, Alaska, Inc, NPDES Appeal No . 03-09,

slip op. at 31 (EAB, June 15, 2004), I I E .A .D. (quoting In re Encogen Cogeneration Facility, 9 E .A .D . 244,

249-50 (FAB 1999)) .

"In this manner, the permit issuer can make timely and appropriate adjustments to the per-

mit determination, or, if no adjustments are made, the permit issuer can include an explanation of why none are

necessary ." In re Essex County (NJ) Res . Recovery Facility, 5 E .A .D. 218, 224 (EAR 1994).

[*241

3. Interim Seasonal Average Limitation

As indicated in the above-quoted portion of Permit Condition I .A. 1 note 6, compliance with the Permit's 0 .5 mg/I

interim phosphorus limitation from April through October is measured using an "interim seasonal average." Permit

Cond . I .A .1 and .2 n.6 (R . Exh . 13)

. Sudbury states that this provision was not present in the Draft Permit, and is not

sufficiently stringent to achieve compliance with applicable water quality standards . Petition at 20 . According to Sud-

bury, compliance should be measured using a monthly average . Sudbury also asserts that this requirement is impermis-

sibly vague . Id.

Sudbury is correct that the phrase "interim seasonal average" did not appear in the Draft Permit

. Rather, the Draft

Permit stated only that on the effective date of the permit, "an interim limit of 0 .5 mg/I shall be met ." Draft Permit

Cond. I.A. 1 . and .2 n.6 (R. Exh .23) . Presumably, under the Draft Permit, compliance with the interim limit was to be

measured in the same way as the Permit's 0

.1 mg/1 phosphorus limit, i.e ., using a 60-day rolling average limit . See id.

The final Permit maintains the use of the 60-day rolling average for measuring 1*251 the 0 .1 discharge limit, but would

measure compliance with the 0 .5 mg/I interim limit using an "interim seasonal average total phosphorus limit ." See

Permit Cond . I .A . 1 and .2 n.6 (R . Exh .13).

The only explanation for the change consists of one sentence in the Region's Response to Comments . In particular,

in responding to a comment by Marlborough expressing concern that the 0

.5 mg/I interim limit would "open[] the City

to potential violations, despite its best effort," the Region and MADEP stated that "the agencies have modified the lan-

guage relative to the interim limit to indicate that the 0

.5 mg/I limit is a seasonal average limit." Response to Comments

at 6. Under 40 C.F.R. § 124 .17(a)(1), in responding to public comments, the Region must specify the reasons for any

changes to the draft permit

. By so doing, "the Region ensures that interested parties have an opportunity to adequately

prepare a petition for review and that any changes in the draft permit are subject to effective review ." In re Amoco Oil

Co ., 4 E .A .D

. 954, 980 (EAR 1993)

. Because the Regonhas failed to explain why it apparently agreed with Marlbor-

ough's above-quoted comment and 1*261 decided to change the terms of the permit, we believe a remand is appropriate .

See id. (remanding permit where the Region's mere concurrence with a comment failed to provide adequate explanation

for a change in draft permit and, thus, failed to provide the parties "with an opportunity to prepare an adequately in-

formed challenge to the permit addition") . Further, absent such an explanation, it does not appear that the record reflects

the "considered judgment" necessary to support the applicable permit determination . See In re Austin Powder Co ., 6

E.A .D . 713, 720 (EAR 1997). As the Board has previously stated, a permit issuer must articulate with reasonable clarity

the reasons for its conclusions and must adequately document its decision making . See In re Ash Grove Cement Co ., 7

Page 7

---

2005 EPA App . LEXIS 14,

E.A.D . 387, 417-18 (FAR 1997)

(remanding RCRA permit because permitting authority's rationale for certain permit

limits was not clear and therefore did not reflect considered judgment required by regulations) ;

Austin Powder, 6 E.A.D.

at 720 (remand due to lack of clarity in permitting authority's explanation) .

Because [*271 the Region has failed to provide a sufficient explanation for the apparent change in the manner in

which compliance with the Permit's interim phosphorus limit will be measured, the Permit is remanded . On remand, the

Region must either provide an explanation for requiring that the Permit's interim phosphorus limitation be measured

using an "interim seasonal average total phosphorus limit," or modify this provision of the Permit .

4. Winter Phosphorus Limit

Permit Condition I .A .2 establishes a phosphorus limitation of 0

.75 mg/I for the months of December through

March . n14 In its Petition, Sudbury alleges that this limitation is not sufficiently stringent to meet applicable water qual-

ity standards, and should be at least as stringent as the Pennit's 0

.5 mg/I interim seasonal phosphorus limitation for the

months of April through October . See Petition at 20-21. In addition, Sudbury argues that once the final discharge limit

of 0

.1 mg/I goes into effect, this limit should apply all year in order to ensure compliance with water quality standards .

Id. at 21 .

n 14 The Fact Sheet contains the following explanation for the winter phosphorus limitation

:

The permit also establishes a monthly average phosphorus limit of 0 .75 mg/l from December 1

through March 31 (the "winter limit") . This limit is the same as that contained in the 1988 permit

and is being maintained both for anti-backsliding purposes and to minimize the accumulation of

phosphorus in receiving water sediments . According to [an October 2000 report prepared by

ENSR International for MADEP on nutrient loadings in Hop Brook (R

. Exh . 6)], the pattern of

total phosphorus in pond sediment suggests that the sediments are highly nutrient-enriched and

will support dense rooted plant growth if other factors (mainly light) are favorable . Due to the

lack of plant growth in the winter period that can accumulate dissolved phosphorus in the im-

poundments, the primary concern is to minimize particulate phosphorus that could settle and ac-

cumulate in the impoundment sediments . Accordingly, an orthophosphorus (dissolved phospho-

rus) monitoring requirement has also been included in order to determine the particulate fraction

of phosphorus that is being discharged and to ensure that it is minimal .

Fact Sheet at 7 (R . Exh . 10) .

1*281

In response to comments on the Draft Permit questioning whether the higher winter phosphorus limitation was suf-

ficiently protective of water quality standards, the Region stated as follows :

.

The intent of the winter phosphorus limit is to ensure that the particulate fraction of the total phosphorus

discharged is very small in order to minimize the potential for any significant accumulation of phospho-

rus in the sediments . This is based on the assumption that the dissolved fraction of the total phosphorus

will pass through the system given the short detention time of the ponds and the lack of plant growth dur-

ing the winter period . It is the agencies' expectation that with a winter limit of 0 .75 mg/I total phospho-

_ms, the .particulate fraction will be less than 10% of the total

. If the data-indicates that the particulate -

fraction is greater than 10% of the total, the winter phosphorus limit may be reduced in future permitting

actions . In addition, if a mass balance analysis of the fate of phosphorus in the Hop Brook system during

the winter period indicates that dissolved phosphorus could be accumulating in the ponds, the winter pe-

riod phosphorus limit may be reduced in future permitting 1*291 actions

. The agencies will pursue the

necessary resources in order to conduct the mass balance analysis . If necessary, the pennittee may be

asked to conduct the analysis through the authority of Section 308 of the Clean Water Act .

Page 9

---

30 .

2005 EPA App

. LEXIS 14,

Response to Comments at 13

. Because Sudbury has failed to articulate why the Region's response is clearly erroneous

slipor

otherwise

op. at 1 I

warrants

(FAB, Febreview,

. 1, 2005),

review

12

is

Edenied

.A .D .

on

.

Moreover,

this issueas

.

See

the

In

Board

re Amerada

has previously

Hess Corp

stated,

., PSD

the

Appeal

Board traditionallyNo

. 04-03,

assigns

Cominco

a

Alaska,

heavy burden

Inc.,

to

NPDES

petitioners

Appeal

seeking

No . 03-09,

review

slipof

issues

op

. at

that

22 (EAB,

are essentially

June 15, 2004),

technical

I I Ein .Anature.D .

.

.

See

Although

In re Teck

Sudbury

disagrees with the Region's rationale for including a lower winter phosphorus discharge limitation, Sudbury has failed

Review

to meet

is

its

therefore

burden of

denieddemonstrating

.

that this determination is clearly erroneous or otherwise warrants Board review

.

5

. Winter Ortlto (Dissolved) Phosphorus Limitation

nal PermitSudbury

. Petition

objects to

at

the

21-22absence

. Although

of a

Permit

discharge

condition

[*30] limitation

I .A.2

includes

applicable

a reporting

to ortho

requirement

(dissolved)

for

phosphorus

ortho phosphorusin

the fi-

during the months of December through March, it does not include a discharge limitation during this period

. nl5 Ac-

cording to Sudbury, the Region has failed to justify the absence of a discharge limitation

. Id. at 21 .

Page 9

n 15 The Permit does not contain an ortho phosphorus limitation for the period of April 1 through November

Because this issue was not specifically raised during the comment period, it was not preserved for review

. See In re

BP Cherry Point, PSD Appeal No

. 05-01, slip op. at

11, 14-I5 (EAB, June 21, 2005), 12 E .A .D .

. Although both Sud-

bury and HBPA objected to the Permit's higher winter phosphorus discharge limitation and to the rationale for such a

Accordingly,

limitation, n16

review

the

is

comments

denied

did

on

not

this

raise

issuea

.

specific

1*311 n17objection

to the lack of discharge limitation on ortho phosphorus

.

n16 As the previously quoted portions of the Response to Comments and Fact Sheet make clear, part of the

Region's rationale for including a higher winter phosphorus discharge limitation is that, according to the Region,

the winter discharge will have a higher proportion of dissolved oxygen that will flow through the watershed

without causing further significant nutrient accumulation in the ponds

. While HBPA objected to the Region's

conclusions in this regard during the comment period, this objection related to the Permit's inclusion of the

higher winter phosphorus limit rather than the absence of a limitation on dissolved phosphorus

. Moreover, as

stated above, although Sudbury disagrees with the Region's determination relating to dissolved phosphorus,

Sudbury

June

warrants

15,

has

2004),

Board

failed

review11

to

E.Ameet

.

.D

See

.

its

(the

In

burden

re

Board

Teck

of

traditionally

Cominco

establishing

Alaska,

that

assigns

Inc

this

.,

a

NPDES

determination

heavy burden

Appeal

is

to

Noclearly

petitioners

. 03-09,

erroneous

slipseeking

opor . areview

otherwiset22

(EAB,of

is-

sues that are essentially technical in nature)

.

[*32]

n17 We note that the Region has stated that the winter phosphorus limit may need to be reduced in the fu-

sponse

ture

will

"if

take

to

the

steps

Comments

data

to

indicates

modify

at 13

the

that

(RPermit

.

the

Exhparticulate

.

.

30)

. In such

fraction

a circumstance,

[of total phosphorus]

we would expect

is greater

that,

than

if appropriate,

10% of the totalthe

."

RegionRe-

6 . AtTaptive77amigement-

-

Sudbury argues that by failing to include additional mandatory control measures, such as a mandatory adaptive

management program in the receiving waters to control eutrophication, the Permit fails to ensure compliance with ap-

plicable water quality standards

. n18 Petition at 22-23

. In particular, Sudbury argues that in order to meet state water

quality standards the Permit must include additional measures designed to remove the phosphorus in the sediment of the

affected ponds. Id.

at 23 .

---

2005 EPA App . LEXIS 14,

n18 As described in the Fact Sheet, the Permit's "adaptive management" approach includes the 0 .1 mg/I

phosphorous limitation, followed by further voluntary studies to be conducted "as soon as possible" after permit

issuance . After further study, the Region and MADEP will determine whether additional measures are necessary

to meet water quality standards . See

Fact Sheet at 6-7 . According to Sudbury, this process should be a manda-

tory part of the Permit .

[*331

In responding to comments on this issue during the comment period, the Region stated :

The agencies concur that there is a potential for water column release of phosphorus that has accumu-

lated in the sediments to affect both the magnitude and timing of algal reductions . The likelihood of

achieving water quality standards, and therefore avoiding the need .for additional treatment, would he

enhanced by remediating the sediment sources ofphosphorus . The purpose of the adaptive management

approach, as described in the fact sheet, is to allow the permittee to pursue the most cost effective means

of achieving water quality standards .

If the [Permittee] ultimately chooses not to pursue sediment remediation, and if water quality standards

are still not being met, the permit may be reissued with a lower phosphorus limit in order to enhance re-

covery of the sediments

. Also, as stated in the fact sheet, for the agencies to look favorably upon a pro-

posal to pursue sediment remediation, the evaluation and implementation plan must be developed as soon

as possible . The agencies will make a determination upon expiration oft/us

permit relative to the need

for a lower phosphorus

limit * [*34[ * *. Therefore, although the agencies are not requiring any studies

related to sediment remediation at this time, it is in the [Permittee's] interest to conduct those studies

prior to its next permit reissuance

.

We recommend in the fact sheet that the permittee consider what additional treatment technologies may

be necessary in the future while determining what treatment technologies to pursue in order to achieve

the 0 .1 mg/I phosphorus limit .

Response to Comments at 12 (R . Exh . 30) (emphasis added) . In discussing the Permit's 0

.1 mg/I final summer phospho-

rus discharge limit and the need for additional remediation measures, the Fact Sheet states :

Because the state water quality standards do not have numeric instream criterion for phosphorus, there is

some discretion available to the permitting agencies for determining the instream phosphorus level

needed to meet the narrative criteria and the designated uses . At the same time, there is strong evidence

in the record that in order to fully support the designated uses, total phosphorus concentrations in the

Hop Brook system have to be significantly reduced, EPA and [MADEP] believe it

may be possible to

meet the numeric and

1*351 narrative criteria and attain [designated] uses ifthe discharge is limited in

the summer months to 0 .1 mg/l.

The [EPA and MADEP] propose to take an "adaptive management" ap-

proach in this case and to require the permittee to reduce its phosphorus to 0 .1 mg/I, after which (he

[EPA and MADEP] will evaluate whether additional treatment is needed . Because tighter limits and ad-

ditional treatment could be necessary in the future, EPA and [MADEP] recommend that the Permittee se-

riously consider the following points

.

First, [EPA and MADEP] strongly recommend that the Permittee design and construct treatment facility

improvements necessary to achieve the 0

.1 mg/1 phosphorus limit that are technically and economically

compatible with adding additional treatment that may be necessary in the future . Treatment to achieve ef-

fluent phosphorus levels less than 0 .1 mg/I typically requires a combination of treatment technologies al-

lowing for the phased implementation of facility improvements .

Page 10

---

2005 EPA App . LEXIS 14,

Second, a significant amount of the phosphorus discharged by the [Facility] has accumulated in the

sediment of the I lop Brook Ponds

. The accumulated phosphorus can be released from the sediment dur-

ing the [*361 summer growing season through chemical processes and/or physical disturbances

. It is

widely agreed that internal recycling of phosphorus will affect both the magnitude and the timing of algal

reductions . The Permittee's potential to meet water quality standards with a seasonal limit of 0.1 mg/l,

and to avoid the need for additional treatment, will be enhanced by taking steps

to reduce sediment

phosphorus recycling. The Permittee is strongly encouraged to complete a comprehensive evaluation of

the sediment remediation/dam removal alternatives

. Implementing a comprehensive sediment manage-

ment program, in conjunction with achieving total phosphorus concentrations of 0 .1 mg/I, would maxi-

mize the potential for water quality improvements sufficient to preclude the need for additional treatment

facility improvements

.

In order for EPA and [MADEP] to make a determination relative to attainment of water quality stan-

dards prior to reissuance of the next permit, any evaluation of sediment remediation alternatives, and

development ofan implementation plan and schedule should be completed as soon as po

.ssible alter issu-

ance of this permit.

Fact Sheet at 6-7 (R . Exh . 10) (emphasis added) . [*37[

Based on the record before us, it is unclear whether the Permit complies with the regulatory prohibition on issuing a

permit "when imposition of conditions cannot ensure compliance with the applicable water quality requirements ." 40

C.F .R. § 122 .4(d) (emphasis added) . Although the Permit itself states that the Facility's discharge "shall not cause a

violation of the water quality standards of the receiving waters," (Permit Cond

. I .A. 1), the record does not indicate

whether the Permit's 0

.1 mg/I phosphorus limitation, by itself, will meet the state's water quality standards . With regard

to the likelihood that imposition of the 0 .1 mg/I phosphorus limitation will be sufficient to meet water quality standards,

the Region states that such a result may be possible, n19 but a mere possibility of compliance does not "ensure" compli-

ance .

n19

See

Fact Sheet at 6 ; see also Response to Comments at 4 ("The agencies believe that the 0 .1 mg/I phos-

phorus limit in conjunction with the 'adaptive management' approach described in the fact sheet, may improve

water quality to the point where achieving water quality uses is possible

. * * * In the absence of sediment reme-

diation, it may be necessary

to further reduce the point source phosphorus limit." ) (emphasis added) ; Fact Sheet

at 7 (stating that the potential to meet water quality standards with a seasonal limit of 0 .1 mg/I "will be enhanced

by taking steps to reduce sediment phosphorus recycling

.") ; Response to Comments at 12 (same) .

[*381

The Region has conceded that significant amounts of phosphorus have accumulated in the sediment of the Hop

Brook ponds and that this phosphorus can be released during the summer season

. Fact Sheet at 7 . The Region has fur-

ther stated that the phosphorus discharge limitation may not be sufficient to control nutrient levels due to "the signifi-

cant amount of phosphorus that will continue to recycle from the sediments for many years" and that "it may be neces-

sary to further reduce the point source phosphorus limit ." Response to Comments at 4 . Without further explanation, this

text would suggest that the Region harbors concern that a discharge limitation, by itself, may not be sufficient to meet

water quality standards . Nonetheless, the Permit does not contain any provisions requiring that Marlborough study or

otherwise address the potential for phosphorus releases from the sediment in the Hop Brook ponds during the term of

this Permit ; nor does the Permit contain any provisions requiring further action, evaluation, or modification in the event

that water quality standards are not achieved despite compliance with the 0 .1-mg/I phosphorus limitation. n20 Rather, as

indicated above, the Region [*39] merely states that "it is in the [Permittee's] interest" to conduct studies relating to

sediment remediation, with the need for lower phosphorus limits to be determined at the expiration of the permit . Re-

sponse to Comments at 11-12 . Although the Region states that, upon Permit expiration, it will determine whether addi-

tional treatment is needed to attain water quality standards, it is simply unclear from the record before us whether this

Permit will ensure compliance with water quality standards . n2l

Page I I

---

2005 EPA App . LEXIS 14,

n20 The Permit itself does not clearly require modification if water quality standards are not met by the end

of the Permit's four-year compliance schedule, but rather states that the Permit may be modified upon a demon-

stration that a presumably lower "alternative permit limit will achieve water quality standards

." Permit Cond .

LA . I and .2 n.6.

n2l Our concern is magnified by the recognition that Marlborough for almost two decades operated under a

permit issued in 1988 . Thus, it is possible that Marlborough might operate under the terms of this Permit for

many years .

1

*401

m

Although, as previously stated, the Board traditionally assigns a heavy burden to petitioners seeking review of is-

sues that are essentially technical in nature, see, e .g., In re Teck Cominco Alaska, Inc

., NPDES Appeal No . 03-09, slip

op. at 22 (EAB, June 15, 2004), 11 E

.A .D . , we nonetheless do look to determine whether the record demonstrates that

the Region duly considered the issues raised in the comments and whether the approach ultimately adopted by the Re-

gion is rational in light of the information in the record

. See In re Govt ofD.C. Mun . Separate Storm Sewer Sys

., 10

E.A .D. 323, 342 (EAB 2002) ("DCMS4"). Under the circumstances of this case, the Region has failed to demonstrate, in

response to specific comments on this issue, that the Permit will "ensure" compliance with applicable Massachusetts

water quality standards

. Accordingly, the Permit is remanded . On remand, the Region must either demonstrate that the

Permit, as written, will ensure compliance with water quality standards, or make appropriate modifications to the Per-

it. n22 See In re Teck Cominco, slip op. at 48-51, I I E .A

.D. (remanding permit modification where 1*411 the Re-

gion failed to satisfy its duty of ensuring compliance with applicable water quality standards)

; DCMS4, 10 E.A .D. at

343 (remanding permit where the Region failed to support its conclusion that the permit would "ensure" compliance

with water quality standards and questioning whether the Region's statement that the permit is "reasonably capable" of

achieving water quality standards comports with prohibition against issuing permits that do not ensure compliance with

water quality standards)

.

n22 Although, as stated earlier, MADEP certified the Draft Permit in accordance with section 401 (a) of the

CWA, 33 US.C. § 1341(a), see supra

note 9 and accompanying text, when the Region reasonably believes that

a state water quality standard requires a more stringent permit limitation than that reflected in a state certifica-

tion, the Region has an independent duty under section 301(b)(l)(C),

33 U.S.C. ,¢ 1311(b)(1)(C), to include

more stringent permit limitations

. See In re City of Moscow, 10 E .A .D . 135, 151 (EAB

2001) ; see also 40 C.F.R.

§ 122 .44(d)(1), (5) . Moreover, as we stated in DCMS4,

the Region cannot rely exclusively on the state certifica-

tion where, as here, there is countervailing evidence in the record . See DCMS4, 10 E.A .D. at

343.

1*421

We emphasize that we are not concluding that a supportable basis for the Region's permit determination on this is-

sue does not exist . Rather, we conclude only that if such a basis exists, the Region has not sufficiently explained where

or how it is reflected in the record before us .

7 . Public Review and Participation

Permit Condition LE contains a compliance schedule for meeting the Permit's 0

.1 mg/I final phosphorus discharge

limitation

. The condition requires that the Permittee submit periodic status reports to EPA and MADEP on the progress

of Facility improvements required to achieve the final phosphorus limitation

. Sudbury argues that this Permit condition

should also require the Permittee to provide such status reports to interested members of the public and allow for public

comments

. Petition at 24

. However, as this argument was not raised during the comment period, it was not preserved for

review. See In re BP Cherry Point, PSD Appeal No

. 05-01, slip op. a t 11, 14-15 (EAB, June 21, 2005), 12 E .A .D .

Moreover, as the Region states in its

response, "citizens already have a right to inspect or obtain copies of publically

available material maintained by EPA, [*431 subject to certain exceptions [not applicable here]

." Region's Response at

83 . Review is therefore denied .

IV . CONCLUSION

For the reasons stated above in Parts IIIB .3 and III .B .6, the Permit is remanded

. On remand, the Region must either

provide an explanation for including the requirement that the Permit's interim phosphorus discharge limitation be meas-

ured using an "interim seasonal average phosphorus limit" (.see

Permit Condition LA .2 n.6) or modify this requirement

Page 12

---

2005 EPA App . LEXIS 14, *

of the Permit

. In addition, on remand, the Region must either demonstrate how, in light of the potential for releases of

phosphorus from sediment in the Hop Brook ponds, the Permit, as written, will ensure compliance with applicable water

quality standards, or modify the Permit to satisfy the regulatory requirements of 40 C .F.R. § 122 .4(d) . If the Region

decides to modify these Permit conditions, then, depending on the nature of the modifications and to the extent required

by law, it should provide the public with an opportunity to comment on the proposed modifications

. n23 Sudbury's peti-

tion for review is denied in all other respects .

n23 Although 40 C

.F.R. § 124.19 contemplates that additional briefing typically will be submitted upon a

grant of review, a direct remand without additional submissions is appropriate where, as here, it does not appear

as though further briefs on appeal would shed light on the issue

. .5ee, e .g., In re Amerada Hess, PSD Appeal No .

04-03, slip op. at 29 n .39 (EAB, Feb. 1, 2005), 12 E .A .D . . An administrative appeal of the determination on

remand is required to exhaust administrative remedies under 40 C

.F.R . § 124.19(Q(1) . Any such appeal shall be

limited to the issues on remand .

[*441

So ordered .

Page 13

---

DATED: April 21, 2006

Environmental Law and Policy Center

35 E. Wacker Drive, Suite 1300

Chicago, Illinois 60601

312-795-3707

CERTIFICATE OF SERVICE

I, Albert F . Ettinger, certify that on April 21, 2006, 1 filed the attached PETITIONERS' POST

HEARING MEMORANDUM

. An original and 9 copies was filed, on recycled paper, with the

Illinois Pollution Control Board, James R

. Thompson Center, 100 West Randolph, Suite 11-500,

Chicago, IL 60601, and copies were served via United States Mail to those individuals on the

included service list.

Albert F. Ettinger (Reg .

3125045)

Counsel for Des Plaines River Watershed Alliance, Livable

Communities Alliance, Prairie Rivers Network and Sierra

Club

---

Bradley P

. Halloran

Illinois Pollution Control Board

James R

. Thompson Center, Suite 11-500

100 West Randolph Street

Chicago, IL 60601

Roy M. Harsch

Sheila H. Deely

Gardner Carton & Douglas LLP

191 N

. Wacker Drive, Suite 3700

Chicago, IL 60606-1698

Sanjay K . Sofat

Illinois Environmental Protection Agency

1021 N

. Grand Avenue East, Mail Code #21

Springfield, IL 62794-9276

SERVICE LIST (PCB 04-88)