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Upper Blackstone Environmental Appeals Board Administrative Appeal


Upper Blackstone Environmental Appeals Board Administrative Appeal 

EPA’s Environmental Appeals Board (EAB) denied icon-pdf a request for review on February 4, 2015 of a municipal wastewater discharge permit that included satellite systems as co-permittees along with utility owning the treatment plant.  The ruling comes despite the fact that neither the statellite systems nor the treatment utility had requested -- and in fact opposed – the co-pemittee provisions.  

The EAB’s decision in In Re Charles River Pollution Control District found that the satellite systems were part of the definition of a “publicly owned treatment works” (POTW) under the Clean Water Act (CWA), and EPA accordingly had the authority to include the satellites as part of the POTW permit.   The EAB also determined that the satellites were not required to individually apply for inclusion in the permit, since the CWA’s “duty to apply” obligation was met when the POTW itself applied for the permit.   The EAB reasoned that the information provided by the POTW in its own permit application was enough to waive the requirement for separate applications from the satellites.

NACWA has significant concerns with many aspects of the EAB’s ruling.  In particular, the decision’s approval of EPA including the satellites as co-permittees with the POTW, especially when the POTW has not requested the satellites; inclusion, is troubling.  There are significant liability issues involved with this approach for POTWs that this decision does not entirely resolve.   The decision notes that, for this particular permit, each entity will only be responsible for the portion of the system it owns and operates.  But the decision also bases this finding solely on Region 1’s own interpretation of the permit, not on any restrictions in the CWA or EPA’s regulations.  This leaves open the possibility EPA could easily take a different interpretation in a future permit that would expose a POTW to permit liability via the satellites.

NACWA is also concerned by the very expansive view this decision takes of the definition of “POTW” to include all collection and satellite systems.  Not only does the decision reinforce the Agency’s position on SSO collection systems being part of the plant, but it also raises questions about the status of CSO collection systems.  In particular, the EAB takes a very narrow view of the D.C. Circuit’s 1980 Montgomery v. Costle ruling that is at odds with traditional interpretations of the case.

The key issue in this permit appeal is whether EPA can forcibly include satellite systems as co-permittees in a permit when neither the satellites nor the treatment facility has requested the inclusion of the collection systems. NACWA previously submitted a brief icon-pdf in the case supporting a challenge to the permit filed by Member Agency the Upper Blackstone Water Pollution Abatement District and attended the oral arguments.

The permit in this case was issued to the Charles River Pollution Control District (which operates the POTW serving the satellites) but also included the satellite communities as direct co-permittees.  EPA Region 1 issued the permit with the co-permittee provision despite strong objections from the POTW, the satellites, and other clean water utilities in Massachusetts, including UBWPAD.

EPA Region 1 has a history of forcibly inserting satellite system co-permittee provisions into POTW permits in Massachusetts (the state does not have delegated NPDES authority) despite opposition from the municipal clean water community in the state.  Earlier attempts by the Region to include co-permittee language, including in a previous permit issued to UBWPAD, have been rejected by the EAB.  However, the Region has persisted in the approach and has included new, revised language in the current Charles River permit in an attempt to gain approval from the EAB. 

Anticipating that the Region will seek to include similar requirements in all future POTW permits, UBWPAD has appealed the Charles River permit to challenge the revised co-permittee language.  The utility also requested NACWA file a brief in support of the appeal and opposing Region 1’s unilateral satellite co-permittee approach.
NACWA’s brief highlights the importance of preserving a flexible, local approach to addressing satellite systems and reinforce the inappropriate nature of Region 1’s rigid, one-size-fits all solution.  The brief also pushes back on some of Region 1’s misguided legal justification for inclusion of the co-permittee language.  The Region’s flawed rational includes a suggestion that passage of sewage from the collection system’s pipes to the POTW’s pipes constitutes a “discharge” under the Clean Water Act (CWA) and thus requires a permit.  The Region also wrongly claims that the legal definition of a POTW under the CWA for purposes of NPDES permitting includes not only the treatment plant but also the entire collection system, thus requiring the satellites to be jointly permitted with the POTW.  These legal arguments are not only unsupported, but they also represent a dangerous interpretation of EPA’s authority under the CWA if they are allowed to stand and are subsequently used by the Agency for permitting purposes in other parts of the country.

Next Steps
NACWA is disappointed with the EAB’s ruling and is concerned about significant aspects of the decision.  NACWA will engage in discussions with impacted members from Region 1 to determine appropriate next steps.

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