Successful Appeal of Wastewater Discharge Permit

On November 24, 2021, OARS appealed the NPDES Permit (National Pollutant Discharge Elimination System Permit) for the Marlborough Westerly Wastewater Treatment Plant issued under the Clean Water Act. This municipal treatment plant discharges directly into the Assabet River.

On December 15, the Environmental Appeals Board granted our Motion to Dismiss based on the desirable outcome of negotiations.

This legal action has:

  • resulted in clearer and stronger continuing protection for the Assabet River (and the Concord River downstream) from increases in phosphorus (nutrient) pollution,
  • prevented a dangerous precedent being set in how permit limits are calculated, and
  • supported continuing progress by maintaining stricter limits for winter discharge of phosphorus.

As precipitation patterns change, with expected deepening of summer droughts, this protection could not be more important.

The case we made to the Environmental Appeals Board (EAB)
OARS’ primary objection to the Final Permit was that it contained a very substantial change from the Draft Permit in the effluent discharge limits for phosphorus, the key nutrient driver of significant eutrophication in the Assabet River and the focus of the 2004 TMDL. The Assabet River is listed as impaired, is subject to a 2004 Total Maximum Daily Load (TMDL) for Total Phosphorus, and currently fails to meet its water quality standards. This change between the draft and final permits made the phosphorus effluent limits much less stringent than those in the prior permit which had been in effect since 2005. This was an illegal switcheroo.

OARS was not notified that these material changes to the Draft Permit were being contemplated and had no opportunity to comment on them. The changes would have allowed greater loading of phosphorus into the river than has been occurring over the past decade, threatening to reverse the improvements in the river’s eutrophic condition. These surprise permit changes in the phosphorus effluent limits violated the mandates of the TMDL, had not been factored into the 401 water quality Certification the state issued based on the different effluent limits in the Draft Permit, and violated the state’s anti-degradation regulation.

OARS Memorandum to the EAB.

Reaching a Winning Resolution
After satisfactory negotiations with the U.S. EPA Region 1, OARS withdrew its Appeal (called a “Petition for Review”) on December 15, and the EAB granted our “Motion to Dismiss” in light of Region 1’s filing that it intends to withdraw “the ‘summer’ (April 1-October 31) mass-based Total Phosphorus limit contained in the Final Permit” and “that: 1) it intends to prepare a new draft permit addressing the portion withdrawn; 2) until such time as a new permit addressing the withdrawn portion is issued, the corresponding portions of the prior permit shall remain in effect; 3) in issuing any such new permit, the Region proposes to regulate Total Phosphorus in concentration-based form; and 4) the Region intends to maintain Total Phosphorus limits in concentration-based form for all permittees on the Assabet River subject to the Assabet River Total Maximum Daily Load” (TMDL) developed by the MassDEP.
Environmental Appeals Board Case Docket

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