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August 15, 2012
EPA sweeps in NPDES case

You will rarely find a judicial ruling that finds more reasons to defer to EPA’s expertise than does the U.S. Court of Appeals for the 1st Circuit in Upper Blackstone Water Pollution Abatement District v. EPA. In the case, a waste water treatment district challenged amended effluent limits that the EPA established in 2008 in a national pollutant discharge elimination system (NPDES) permit for the district’s treatment plant. The 1st Circuit upheld all EPA decisions in the permitting process as reasonable exercises of statutory authority even though the Agency was faced with multiple uncertainties that were not absolutely resolved.

Oxygen depletion

The Blackstone River travels from central Massachusetts into several rivers in Rhode Island and ultimately empties into Narragansett Bay. The river and bay are heavily polluted with phosphorus and nitrogen that have caused hypoxic conditions (waters characterized by dissolved oxygen below what is needed by aquatic organisms to breathe) and anoxic conditions (waters completely depleted of dissolved oxygen). Heavy losses of aquatic life have resulted. While stormwater runoff from agriculture and construction have contributed to the problem, it is generally recognized that nutrients from the Upper Blackstone facility and other wastewater treatment plants are the primary culprits.

In 2001, the EPA, which administers the NPDES program in Massachusetts, and the Upper Blackstone District negotiated a settlement in which the district agreed to upgrade systems in its plant, which is located in Millbury, Massachusetts, and eventually meet more nutrient limits than those contained in its permit. But several years later, before the upgrades were completed, and in response to the District’s application to renew its NPDES permit, the EPA imposed limits in the renewed permit that, according to the Agency, matched the limits being met by other wastewater treatment plants discharging into the river system.

‘Irrational’ decision

The water district claimed that the EPA acted irrationally in not delaying issuance of the renewed 2008 permit until the upgrades were completed. The district also argued that the EPA based the new effluent limits on flawed data.

The 1st Circuit found first that the 2001 agreement with the district did not alter EPA’s responsibility under the Clean Water Act (CWA) to review and reissue NPDES permits every 5 years. Furthermore, the court agreed with EPA’s contention that even with the upgrades, the district would not be able to meet the new limits. Thus, the court found nothing persuasive in the district’s contention that EPA’s timing in issuing the renewal was irrational.

Regarding EPA’s technical basis for the pollutant limits, the district said the Agency used an antiquated computer model that overestimated nutrient discharges from the facility. According to the district, the EPA should have waited until the district completed its own computer model, which, the district contended, would provide a more accurate estimate of actual discharges. The 1st Circuit found many holes in this argument. For one thing, the court was favorably disposed by EPA’s explanation that its computer model was only one source of useful information in a multifactored analysis and that, to the extent it did rely on the model, it fully accounted for its shortcomings.

Wait for better science?

The 1st Circuit also pointed out that neither the CWA nor the EPA regulations allow the Agency to delay issuance of a new permit indefinitely until better science can be developed, even when there is some uncertainty in the existing data. The court stated: “In almost every case, more data can be collected, models further calibrated to match real-world conditions; the hope or anticipation that better science will materialize is always present, to some degree in the context of science-based agency decision making. Congress was aware of this when it nonetheless set a firm deadline for issuing new permits.”

Also, the court did not look kindly on the failure of the district to present any data from its own unfinished model during the 64 days EPA’s proposed permit was open to public comment. “Indeed, it was uncertain during permitting whether the District would be able to successfully complete the model at all,” said the court.

The EPA emphasized that the renewed permit could be reopened and modified if and when the district’s computer model makes it clear that different limits will result in attainment of water quality in the Blackstone River, the Rhode Island rivers, and Narragansett Bay. The 1st Circuit also found merit in this argument.

The 1st Circuit’s opinion is at http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=11-1474P.01A.

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