Well, it took about a year and a half but we finally settled our appeal of the NPDES permit for the Brockton Sewer Plant. It was a miserable undertaking as for time spent arguing with lawyers and regulators who insist that 2+2 = 5, 6, 7, or 20, anything but 4. I ask myself now, should I write how I feel or should I be good?

My experience taught me that government agencies don’t always do a very good job of overseeing the government. Politics, greed, complacency, ignorance all play a role to varying degrees. Despite layer upon layer of government agencies and administrations the last and often only line of defense for our treasures both natural and otherwise is us.

For those of us experienced in such endeavors the above is hardly a revelation, however, a lot of young people bop around on this site. Much of this is for you. If you see a wrong, question it, learn it, challenge it, and change it. It’s your right and perhaps more importantly your responsibility. Along the way you will find plenty of liars and frauds in the government, however, you will also find some of the finest people to be found. Work with them and good things will happen.

It wasn’t long after becoming involved with the Brockton sewer plant that I realized it was going to be a long haul. The local MA DEP office was blind to the gross pollution in the river and EPA was detached from on the ground affairs at the plant. Deciding that some public awareness might be helpful we organized a shoreline survey of the river with the Ma Riverways Adopt A Stream Program. We had a good turnout for our first meeting, local residents, along with some college and high school students.

A couple residents approached me before the start of the meeting and explained that they hunted and fished in the area. They told me what a filthy mess the river was and how someone needed to clean it up, I agreed. We then took our seats and began the meeting. I began by explaining that the task we were undertaking was not an easy one. It would likely take several years and a lot of time and effort. When I finished one fellow I spoke with before the meeting got up and began to rant about the inequities of it all, that it should not take so long. He seemed certain that someone out in the government would fix it without all the effort of which I spoke. Again, I explained my experience up to that point. The agencies charged with the task of regulating this plant were not doing their jobs, and they will not do it unless we force them. He became indignant at that point, made a couple ignorant comments regarding our meeting and with great bravado stomped out with his friend, never to return.

Looking back it was something of an Orwellian moment. For those of you familiar with 1984 by George Orwell think, Two Minutes Hate. The two fellows that marched out of the room were, by the fact they came to the meeting interested in cleaning up the river. They were frustrated and angry with the governments’ indifference toward the blatant and gross pollution of the river. To them the government was impenetrable; they were wanting but not willing. Rather than venting their frustration by joining us in a constructive effort to get the job done, they choose to vent at us, as if we were the enemy. Our group became their Two Minutes Hate. They vented their anger and no doubt felt relived; however, it did nothing to solve the problem.

I run across the attitude displayed by those two fellows quite often, at the coffee shop, work, at family affairs and on the internet in blogs and forums. It’s the frustration of the wanting but unwilling. The vented anger and frustration quell the individual for the moment but do nothing to solve the problem. It becomes a cyclical sort of frustration and anger. It’s not a healthy way to live, believe me I have tried it.


"His mind slid away into the labyrinth of doublethink. To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it, to believe democracy was impossible and that the party was the guardian of democracy, to forget, whatever it was necessary to forget, then to draw it back into memory again at the moment when it was needed, and then promptly to forget it again, and above all, to apply the same process to the process itself that was the ultimate subtly: consciously to induce unconsciousness, and then, once again, to become unconscious of the act of hypnosis you had just performed. Even to understand the word “doublethink” involved the use of doublethink."

George Orwell 1984


Below is our appeal

 

U.S. Environmental Protection Agency

Clerk of the Board, Environmental Appeals Board

Colorado Building

1341 G Street, N.W., Suite 600

Washington, D.C. 20005

 

                 Re: NPDES Permit No. MA0101010

                 Petition for Review

 

Dear Clerk of the Board:

 

            Enclosed herewith please find the original and five copies of a Petition for

 

Review for the subject NPDES permit.

 

 

                                                                        Sincerely,

 

                                                                                          Timothy A Watts

 

                                                                                          Douglas H Watts

 

 

BEFORE THE

 

ENVIRONMENTAL APPEALS BOARD

 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

 

WASHINGTON, D.C.

 

 

 

In the Matter of:

 

The City of Brockton NPDES Appeal No. _________

 

Brockton Advanced Wastewater Facility

 

NPDES Permit No. MA0101010

 

Timothy A. Watts

 

Douglas H. Watts

 

Petitioners.

 

____________________________________

 

 

PETITION FOR REVIEW

 

            Pursuant to 40 CFR § 124.19, Timothy A. Watts and Douglas H. Watts

 

("Petitioners") submit to the Environmental Appeals Board (the"Board") this Petition for

 

Review ("Petition") to review or otherwise contest the May,11 2005 final permit

 

decision of the United States Environmental Protection Agency (the" EPA") to issue a

 

permit to the City of Brockton (the "City" or the "Permittee") for a five year renewal for a

 

National Pollutant Discharge Elimination System Permit issued jointly by the EPA

 

pursuant to the Federal Clean Water Act, 33 U.S.C.§ 1251 et seq. (the "CWA"), and the

 

Massachusetts Department of Environmental Protection (the "DEP") under the

 

Massachusetts Clean Waters Act, M.G.L. c. 21, § 26 et seq., (the "Act"), Permit

 

No.MA01001010 (the "Permit").

 

            Any permit issued by EPA and DEP to the Permittee must provide for compliance

 

with the applicable requirements of the CWA, the Act and regulations thereunder. See 40

 

CFR §122.4(a); 314 CMR § 3.07(1). Any such permit issued by EPA and DEP must also

 

ensure compliance with the applicable water quality requirements of all affected states.

 

40 CFR §122.4(d); 314 CMR 3.07(4). The DEP also has affirmative obligations

 

that must be satisfied in issuing any CWA certification. Specifically, any certification of

 

a permit by the DEP must ensure that the permit imposes conditions adequate to assure

 

compliance with the applicable provisions of the CWA, including state water quality

 

standards. 33 U.S.C. § 1341, 40 CFR § 124.53.

 

            Petitioners assert there are certain conditions included in the Permit, and certain

 

conditions omitted from the Permit, based on "a finding of fact or conclusion of law

 

which is clearly erroneous" or on "an exercise of discretion or an important policy

 

consideration which the [Board] should, in its discretion, review". 40 CFR § 124.19(a).

 

            The Petitioners seek review of certain Permit conditions on the grounds that these

 

conditions are based on erroneous findings of fact or conclusions of law (a) whether the

 

conditions of the Permit and Certification adequately conform to the Massachusetts water

 

quality requirements, specifically the antidegradation, antieutrophication, Class B, odor,

 

color and turbidity water quality requirements, and the minimum criteria applicable to

 

all surface waters, (b) whether the conditions of the Permit and Certification adequately

 

ensure compliance with the CWA, the Act and regulations promulgated thereunder, and

 

(c) whether the Permit contains and the Certification requires adequate control

 

mechanisms necessary to meet the conditions of the Permit that prohibit the

 

Permittee from causing violations of the water quality standards in the Receiving Waters.

 

 

1. Description of Petitioners

 

 

            Timothy A. Watts and Douglas H. Watts are citizens of the United States of

 

America who are disgusted by the ongoing gross and blatant pollution of the Salisbury

 

Plain River, the Matfield River and the Taunton River by this Facility. As a direct result

 

of the discharge of the Facility the whole of the Salisbury Plain River below the Facility,

 

and its parent stream, the Matfield River, are unusable and unsafe for public recreation

 

and unsuitable habitat for these rivers' native aquatic species. In June 2004, Petitioners

 

filed timely written comments on the draft permit for the Facility (Exhibits A,B).

 

This Petition addresses issues discussed in detail by both Petitioners in their previous

 

comments to EPA.

 

 

2. Receiving Waters and Facility

 

 

Salisbury Plain River (Segment MA62-06) Location:  From the Brockton

 

Wastewater Facility discharge, Brockton to the confluence with Beaver Brook forming

 

the Matfield River, East Bridgewater.

 

Segment Length:  2.3 miles 

 

Classification:  Class B, Warm Water Fishery

 

The drainage area of this segment is approximately 21.3 square miles.  Land-use

 

estimates (top three) for the subwatershed:

 

Residential…………45.7%

 

Forest………………24.5%

 

Open land………….9.3%

 

The impervious cover area for this subwatershed is 25.7%.

 

This segment is on the Massachusetts Year 2002 Integrated List of Waters – Category 5

 

for not meeting water quality standards for pathogens and causes unknown (MA DEP

 

2003 Exhibit I).

 

The Brockton Wastewater Treatment Facility (Facility) discharges pollution into

 

the Taunton River watershed, the largest watershed in southeastern Massachusetts and the

 

largest undammed coastal watershed in southern New England. The Taunton River

 

watershed is the largest tributary to Mount Hope Bay and Narragansett Bay in

 

Massachusetts and Rhode Island. Prior to the onset of severe pollution, the Taunton River

 

Watershed supported nearly all of the diadromous fish species native to the northeastern

 

United States and Canada, including Atlantic sturgeon, shortnose sturgeon, striped bass,

 

sea lamprey, American shad, blueback herring, alewife, anadromous brook trout, white

 

perch, American eel, rainbow smelt and tomcod. The eastern portion of the Taunton

 

River watershed is fed by a connected series of freshwater ponds --  Assawompset, Great

 

Quitticas, Little Quittacas, Nanapocksha and Apponequet Ponds -- the largest natural

 

freshwater lakes in Massachusetts. The western portion of the Taunton River watershed is

 

fed by the Hockomock Swamp, a 6,000 acre array of swamps and meadows which

 

comprise the largest freshwater wetland complex in Massachusetts.

 

            The Taunton River watershed has been home to humans for more than eight

 

millennia. The richness and diversity of its native aquatic fauna have sustained humans

 

since the last Ice Age. In less than one century, the native aquatic fauna of the Taunton

 

River has been nearly destroyed by the pollution of its waters. The Taunton River is one

 

of the most severely polluted rivers in New England. The largest source of pollution in

 

the Taunton River watershed is human and industrial sewage from the City of Brockton,

 

Massachusetts.  Mount Hope Bay, the coastal embayment which receives all of the

 

water of the Taunton River, is the most degraded coastal embayment in New England.

 

One of the largest contributors of pollution to Mount Hope Bay is the Facility.

 

            Because the Facility is located in the uppermost headwaters of the Taunton River

 

watershed, the pollution from this plant degrades and impairs the health of the entire

 

length of the Taunton River and its estuarial complex in southeastern Massachusetts and

 

Rhode Island. Native fauna -- from brook trout in the Taunton River's headwaters to

 

winter flounder and quahogs in Narragansett Bay  --  are severely harmed by ongoing

 

pollution from the Facility.

 

              Deeds of record from the 17th century show the Native American name for the

 

Salisbury Plain River and its parent, the Matfield River, is Aquanissiwamissoo. Historic

 

accounts show the native fisheries of Aquanissiwamissoo included an abundance of

 

native brook trout, American eel and American shad. The Aquanissiwamissoo is a

 

medium to high gradient stream, with numerous rapids and riffles. The

 

Aquanissiwamissoo is primarily fed by groundwater and springs, resulting in

 

water temperatures and habitat favored by native brook trout (Salvelinus fontinalis).

 

Much of the native brook trout habitat of the Salisbury Plain and Matfield River

 

watersheds has been destroyed by urban and residential development. This habitat can be

 

physically restored, but restoration efforts will be fruitless if the waters of the Salisbury

 

Plain and Matfield Rivers are severely polluted from effluent discharges by the Facility.

 

            Historic records (Belding 1925) show the Aquanissiwamissoo was an important

 

breeding ground for the native American shad of the Taunton River watershed. Severe

 

pollution from the Facility is now preventing native American shad from reestablishing

 

themselves in the Taunton River watershed. A remnant run of native American shad

 

persists in the Palmer River, a Mount Hope Bay tributary adjacent to the Taunton River

 

in Rehoboth, Massachusetts.  Despite the close proximity of this remnant population, the

 

Taunton River, Matfield and Salisbury Plain Rivers do not support any American shad.

 

American shad will not be able to recolonize their native habitat in the Taunton River

 

watershed so long as the Taunton River remains severely polluted due to effluent from

 

the Facility.

 

            Today, the Facility discharges the waste of more than 100,000 people into a

 

spring-fed native brook trout stream less than 30 feet in width. Since the City of Brockton

 

began discharging its sewage into the Salisbury Plain River, the City's discharge has been

 

in violation of the United States Clean Water Act.

 

The City of Brockton's discharge of sewage into the Salisbury Plain River has

 

been in violation of the United States Clean Water Act since the discharge began nearly

 

30 years ago. Today, the City of Brockton's discharge of sewage into the Salisbury Plain

 

River is in violation of the United States Clean Water Act. The Draft Permit issued by US

 

EPA on May 11, 2005 will allow the City of Brockton's illegal discharge of sewage to

 

continue indefinitely. These facts have forced this Petition.

 

 

3. The Facility Discharge is the Primary Cause of the Degraded Condition of the

 

Receiving Waters.

 

           

Many commenters requested that language restricting new sewer connections

 

and limiting the Towns of Abington and Whitman to 1MGD be deleted from the draft

 

permit.” (Comment #19 Page # 7 Response to Public Comments Exhibit D)

 

            “We understand that several communities near the treatment facility are faced

 

with difficult decisions relative to water and wastewater management, however, the

 

Salisbury Plain River can not support an increase in flow. As stated in the fact sheet, the

 

facility frequently exceeds its design flow of 18 MGD and high flows have caused the

 

facility to be out of compliance with their existing NPDES permit. The Salisbury Plain

 

River, is an effluent dominated river (the Salisbury Plain River at the point of the POTW

 

discharge is about 98 percent effluent under 7Q10 conditions) and does not meet the

 

State’s Water Quality Standards for Class B Waters. It is also on the State’s 2004

 

Integrated List of Waters as a Catergory 5 water (water requiring a TMDL), for

 

pathogens.” (EPA Response to Comment # 19 Page # 7 Exhibit D)

 

            In a June 2003 press release EPA made the following statement regarding the

 

Facility “The city's treatment plant, which discharges to the Salisbury Plain River, has

 

consistently failed to meet pollution discharge limits in its federal permit over the last

 

decade. Inspections by EPA and the Massachusetts Department of Environmental

 

Protection (DEP) and the plant's own reports document equipment failures, operator

 

errors, chemical feed problems and chronic bypassing of treatment equipment at the

 

plant. This has led to excessive discharges of sewage solids, bacteria, ammonia and

 

chlorine into the river, which flows to the Matfield River which downstream becomes the

 

Taunton River.” (Exhibit F)

 

            The Petitioners assert that these statements by EPA are an acknowledgement

 

by  EPA that the Facility is the primary cause of the receiving waters not meeting

 

MAWQS. Furthermore, since the above statements were made MA DEP has released

 

2005 draft reassessment of the 303d list for the receiving waters. The draft for the

 

segment from the Facility discharge, Brockton to the confluence with Beaver

 

Brook forming the Matfield River, East Bridgewater segment Length:  2.3 miles 

 

states the following “Sewage odors, turbidity, filamentous green algae and

 

trash/construction materials were observed in the Salisbury Plain River near Belmont

 

Street, West Bridgewater by both DWM and ESS staff in 2001 and 2002.” (MA DEP

 

2005 Exhibit I)

 

“The Primary Contact Recreational Use is assessed as impaired because of

 

elevated bacteria counts.  The Secondary Contact Recreational and Aesthetics uses are

 

also assessed as impaired because of the objectionable conditions (odors, turbidity,

 

filamentous green algae and trash and debris).  These uses are impaired as a result of the

 

Brockton Advanced Water Reclamation Facility discharge as well as nonpoint source

 

pollution in this urbanized subwatershed.” 

 

“The Aquatic Life Use is assessed as impaired for this segment of the Salisbury

 

Plain River based primarily on the results of the benthic macroinvertebrate community

 

analysis and the limited water quality data. Low dissolved oxygen/saturation and elevated

 

total phosphorus concentrations were both documented and are associated with the

 

Brockton Advanced Water Reclamation Facility discharge as well as nonpoint source

 

pollution in this urbanized subwatershed.  Acute and chronic toxicity in the Brockton

 

Advanced Water Reclamation Facility effluent are also of concern.” (MA DEP Exhibit I)

 

This segment was previously listed on the Massachusetts Year 2002 Integrated

 

List of Waters – Category 5 for not meeting water quality standards for pathogens and

 

causes unknown only (MA DEP 2005 Exhibit K).

 

The Salisbury Plain River segment upstream of the Facility was reassessed as

 

well. This segment runs from the confluence of Trout and Salisbury brooks, Brockton to

 

the Facility discharge, Brockton, Segment Length:  2.4 miles. This segment is

 

on the Massachusetts Year 2002 Integrated List of Waters – Category 5 for not meeting

 

water quality standards for siltation, pathogens, suspended solids, and other habitat

 

alterations (MA DEP 2005 Exhibit J).

 

 “This segment of the Salisbury Plain River is assessed as impaired for both the

 

Primary and Secondary Contact Recreational uses because of elevated levels of bacteria

 

during both wet and dry weather sampling conditions.” (Ma DEP 2005 Exhibit J)  The

 

Aesthetics Use is not assessed. The draft 2005 assessment for this segment remained

 

unchanged from the MA DEP 2002 assessment.

 

In a letter dated August 9, 2002 EPA made the following statement to the City

 

of Brockton regarding the Facility. “The receiving water for Brockton's wastewater

 

discharge is dominated by the effluent during low flow conditions. There is evidence that

 

the receiving water does not support aquatic life uses designated in the Massachusetts

 

Water Quality Standards. Toxicity and nutrient loadings are a primary concern relative to

 

water quality. The existing permit contains a 1.0 mg/l phosphorus limit but future limits

 

will be much more stringent. The new national criteria recommendation for receiving

 

water concentrations of total phosphorus is 0.024 mg/l. The existing permit expires in

 

2004 and the reissued permit will almost certainly contain a much more stringent water

 

quality based phosphorus limit.”

 

“In addition, nitrogen loadings to Mt. Hope Bay are a significant concern. A Total

 

Maximum Daily Load (TMLD) will be established for Mt. Hope Bay in the next few

 

years that will likely require significant reductions in current nitrogen loadings. Given

 

that the Brockton wastewater treatment facility has been estimated to contribute as much

 

as 30% on the nitrogen loading to Mt. Hope Bay, there is high likelihood that the total

 

nitrogen limits will be incorporated in future NPDES permits.” (EPA letter to City

 

2002, Exhibit G ).

 

The Petitioners assert that these statements by EPA and MA DEP are an

 

acknowledgement by EPA and MA DEP that the Facility is the primary cause of the

 

receiving waters not meeting MAWQS. “The Treatment Facility Discharge is the

 

Primary Cause of the Degraded Condition of the Receiving Waters” These

 

statements also establish that the impacts of the Facility’s discharge are not limited to the

 

Salisbury Plain River alone. EPA acknowledges the impacts of the Facility’s flow on

 

the whole aquatic ecosystem of the Salisbury Plain River, Matfield River, Taunton River

 

and Mount Hope Bay.

 

The following list of submitted exhibits further support the Petitioners assertion

 

that, “The Facility Discharge is the Primary Cause of the Degraded Condition of the

 

Receiving Waters.”

 

            The Petitioners offer the following exhibits as attachments in support of our

 

assertion that, “The Facility Discharge is the Primary Cause of the Degraded Condition of

 

the Receiving Waters.”

 

Exhibit C Page 1, 2, Taunton River Watershed Alliance public comments regarding 2002

 

flows.

 

Exhibit L, Bridgewater State College public comments.

 

Exhibit M, Taunton River watershed 1996 and 2001 Biological Assessment MA DEP.

 

Exhibit N, ESS Group Matfield and Salisbury Plain River Watersheds Nonpoint Pollution

 

Assessment Report and Management Plan MA DEP 2003.

 

Exhibit N, Part A, Sample Site Locations.

 

Exhibit N, Part B, Field Data Sheets

 

Exhibit N, Part C, Field Reconnaissance Observations.

 

 

 

4. Compliance With Statutory Water Quality Standards.

 

           

For EPA to issue a NPDES permit for the discharge of pollutants by the City

 

Facility into the Salisbury Plain River, the EPA must show this discharge of pollutants

 

will not cause the receiving water, the Salisbury Plain River, to fail to meet its statutory

 

minimum water quality standards. 33 U.S.C. § 1341, 40 CFR § 124.53. This is

 

demonstrated in EPA's Permit for the Facility, which contains the following mandatory

 

compliance requirement at page 6,  Part I.A.I,  Line A: (Exhibit E)

 

"a. "The discharge shall not cause a violation of the water quality standards in the

 

receiving waters."

 

            In the EPA's "Responses to Public Comments" which accompanies the

 

Permit, EPA states: "The Salisbury Plain River is an effluent dominated river (the

 

Salisbury Plain River at the point of the POTW discharge is about 98 percent effluent

 

under 7Q10 conditions) and does not meet the State's Water Quality Standards for Class

 

B Waters."(EPA Response to Comment 19 Exhibit D)

 

            The Permit provides no evidence its proposed effluent limitations will allow

 

the Salisbury Plain River to meet its minimum statutory water quality standards.

 

In its response to Comment 47, EPA indicates the proposed effluent limitations will not

 

allow the Salisbury Plain River to meet its statutory water quality standard: "EPA

 

and MA DEP believe these measures in conjunction with the plant upgrades will

 

contribute toward minimizing the further degradation of the Salisbury Plain River and

 

move closer toward meeting the State's Water Quality Standards during this five year

 

permit cycle." (EPA Response to Comment 47 Exhibit D)

 

             EPA is assuming that future upgrades and future permit limits “will contribute

 

toward minimizing the further degradation of the Salisbury Plain River and

 

move closer toward meeting the State's Water Quality Standards during this five year

 

permit cycle." Water quality based effluent limitations require otherwise as pointed out

 

by EPA in their response to comments by the Town of Hudson during the public

 

comment  period on the Hudson Wastewater Treatment Facility  “The establishment

 

of water quality based limits, unlike technology based limits, are not based on treatment

 

capabilities.” (Assabet River NPDES Permits-Response to Comments, page #3 response

 

#4 Exhibit H) US EPA further states on Page # 7 Comment # 3, “In addition to

 

technology based controls, permits must contain any more stringent limitations for

 

particular pollutants that are necessary to meet MAWQS. A water quality based effluent

 

limitation must be calculated at levels to ensure achievement of MAWQS, regardless of

 

the availability or effectiveness of technologies or the cost dischargers would incur to

 

meet those limits (Assabet River NPDES Permits-Response to Comments, page #7

 

response #3 Exhibit H).” EPA further states on Page # 18, 19 Response # 12 last

 

sentence, “Finally, The Agencies note that permits must include limits as stringent as

 

necessary to meet Massachusetts WQS irrespective of technological feasibility.”  

 

(Assabet River NPDES Permits-Response to Comments, page #19 response #12 Exhibit

 

H) The effluent limits in this permit are not in keeping with this EPA standard by the

 

 EPA’s own admission.

 

 

            In its response to Comment 50, EPA suggests the proposed effluent

 

limitations may not allow the Salisbury Plain River to meet its statutory water quality

 

standard: "Many variables can contribute to a water body not achieving its assigned water

 

quality standards. Large scale reductions in dry weather and wet weather point source

 

pollutant loadings will be necessary to achieve Standards in the Salisbury Plain River

 

This permit as well as the Phase II stormwater permit, will result in significant reductions

 

in dry weather and wet weather pollutant loadings but if further reductions are necessary

 

the permit may be modified or revoked and reissued with more stringent limits if cause

 

exists, pursuant to 30 CFR 122.62." (EPA Response to Comment 50 Exhibit D)

 

 

Here again EPA is assuming that that this permit and a yet to be established

 

Phase II stormwater permit will result in significant reductions in dry weather and wet

 

weather pollutant loadings. “But if further reductions are necessary the permit may be

 

modified or revoked and reissued with more stringent limits if cause exists.” Water

 

quality based effluent limitations do not allow for But ifs’. EPA must demonstrate

 

 this Permit as issued will allow the Salisbury Plain River to meet its water quality

 

standard.

 

 

As shown above, EPA itself has stated the Permit for the Facility will continue to

 

cause the Salisbury Plain River to fail to meet its statutory water quality standards; and

 

the Permit will not allow the Salisbury Plain River to meet its statutory water quality

 

standards. Without evidence showing the Permit will allow the Salisbury Plain River to

 

meet its statutory water quality standards, the Permit is illegal.

 

           

5. Compliance with Statutory Aesthetic Standards

 

             EPA acknowledges that under existing conditions, the odor of chlorine emanating

 

from wastewater discharged from the facility is noticeable and objectionable in the

 

Salisbury Plain River, the Matfield River and the Taunton River for many miles

 

downstream from the WWTP outfall  (Public Comment 43 Exhibit D). Petitioners

 

and other commenters have informed EPA that the strong chemical odor emanating

 

from the water in these rivers due to the Facility discharge is objectionable and

 

makes these waters unsuitable for swimming, fishing and boating (Exhibit C Page 3, 4). 

 

In response to these comments, EPA states: "The Massachusetts Water Quality Standards

 

for Class B waters prohibit odor in concentrations or combinations which are

 

aesthetically objectionable, that would impair use assigned to Class B waters, or cause

 

tainting in the edible portion of aquatic life." (EPA Response to Comment 43 Exhibit D)

 

            This EPA response indicates the agency has ignored or does not understand

 

the issue raised by commenters. EPA states: "The upgrades to the facility which

 

include improvements for sludge storage, the sludge thickening and dewatering process

 

and the headworks will all contribute to the elimination of odors emanating from the

 

facility." (EPA Response to Comment 43 Exhibit D).

 

            The issue raised by Petitioners and other commenters does not involve odors

 

emanating from the wastewater treatment facility itself. The issue raised by commenters

 

is the noticeable and objectionable odor of the water of the Salisbury Plain, Matfield and

 

Taunton Rivers due to large amounts of chemicals used in the wastewater effluent

 

discharged by the Facility. As noted by the EPA, Petitioners and other commenters,

 

the waters of the Salisbury Plain, Matfield and upper Taunton Rivers now smell like a

 

sewage treatment plant due to wastewater from the Brockton WWTP. The odor of

 

chemicals in the water of these rivers is as strong as that from laundromat for many miles

 

below the WWTP discharge. This is further confirmed by the field data sheets of the ESS

 

Nonpoint Study. Field personal noted sewage odors emanating from the water at every

 

sample site on the Salisbury Plain River and Matfield River downstream of the Facility.

 

They noted no sewage odors at sample sites on the Salisbury Plain River up stream of the

 

Facility. (Exhibit N, Parts A, B, C)

 

            These observations should not be surprising because the EPA itself describes

 

the Salisbury Plain River as an "effluent dominated river" and states that during low flow

 

conditions more than 98 percent of the water in the Salisbury Plain River consists of

 

effluent from the Facility. (US EPA Response to Comment 19 Exhibit D).

 

            EPA provides no evidence or assurance its Draft Permit will eliminate the

 

strong and objectionable odor in the receiving waters below the Facility. Unless this odor

 

is eliminated from these receiving waters, the Draft Permit is not in compliance with

 

Massachusetts statutory water quality standards and is illegal.

 

 “In addition to technology based controls, permits must contain any more

 

stringent limitations for particular pollutants that are necessary to meet MAWQS. A

 

water quality based effluent limitation must be calculated at levels to ensure achievement

 

of MAWQS, regardless of the availability or effectiveness of technologies or the cost

 

dischargers would incur to meet those limits” (Assabet River NPDES Permits-Response

 

to Comments, page #7 response #3 Exhibit H). Unless and until a Use Attainability

 

Analysis justifies a downgrading of the use classification of the Salisbury Plain, Matfield

 

and Upper Taunton Rivers’ the Permit must provide controls to eliminate the foul odors

 

which clearly violate the MAWQS in the Salisbury Plain, Matfield and Upper Taunton

 

Rivers’.

 

Because the Taunton River is in the final stages of designation by the National

 

Park Service as a Wild and Scenic River, and because the Matfield and Salisbury Rivers

 

have been recognized as significant tributaries of the same, it is highly unlikely that a Use

 

Attainability Analysis would result in the uses of these rivers being downgraded.

 

(National Park Service Comments Exhibit O)

 

            The Facility disinfects human sewage and wastewater with chlorine, an

 

element highly toxic to life. Other methods exist to disinfect human sewage which do not

 

require the use of chlorine. One of these methods is ultra-violet (UV) radiation.

 

Disinfection of human sewage with UV radiation is a common practice in wastewater

 

treatment facilities across the United States of America. Several commenters requested

 

the EPA require the Facility convert from its use of chlorine as a disinfectant to UV

 

treatment because it would eliminate the discharge of toxic chlorine into the Salisbury

 

Plain, Matfield and upper Taunton Rivers (EPA Comment 34). In its Response, the

 

US EPA states: "The permit includes extensive new requirements on chlorine monitoring

 

to ensure that discharges of residual chlorine are consistent with permit limits." (EPA

 

Response to Comment 34 Exhibit D).

 

            This Response evades the question. EPA provides no reason or explanation why it

 

is not requiring the Facility to convert to ultra-violet disinfection and eliminate

 

the discharge of chlorine into the Salisbury Plain River.  Conversion of the Facility

 

to ultra-violet disinfection would eliminate the discharge of toxic chlorine into the

 

Salisbury Plain, Matfield and Taunton Rivers by the Facility. The technology to

 

achieve this conversion is readily available and affordable. As noted by EPA, the

 

existing objectionable odor from the disinfection process which spoils the receiving

 

waters for many miles downstream is a violation of Massachusetts Water Quality

 

Standards. EPA provides no evidence or assurance its permit restrictions on the discharge

 

from the Facility will result in compliance with the statutory water quality standards.

 

            EPA's assurance that the discharge of residual chlorine into these rivers will

 

be "consistent with permit limits" is tautological. Discharge of residual chlorine into the

 

Salisbury Plain River must be consistent with permit limits. This statement is not relevant

 

to the issue of why any discharge of chlorine is allowed in the Permit when

 

technological methods are available to eliminate the use of chlorine at the Facility.

 

            If the EPA required the facility to convert to UV disinfection and eliminate the of

 

use of chlorine as disinfectant, there would be no need for EPA to require extensive

 

monitoring and permit limitations on this highly toxic element. EPA provides no

 

explanation for its refusal to require the Facility to convert to ultra-violet disinfection and

 

to eliminate the discharge of chlorine into the Salisbury Plain, Matfield and Taunton

 

Rivers.

 

 

 

5. Lack of Dilution Flows

 

           

In its "Responses to Public Comments,"EPA states: "The Salisbury Plain

 

River is an effluent dominated river (the Salisbury Plain River at the point of the POTW

 

discharge is about 98 percent effluent under 7Q10 conditions) and does not meet the

 

State's Water Quality Standards for Class B Waters." (EPA Response to Comment

 

19 Exhibit D)

 

            Despite this statement, EPA's Draft Permit requires no reductions in the

 

amount of wastewater effluent discharged by the Facility into the Salisbury Plain River. 

 

The severe impact of the existing volume of effluent on the receiving waters from the

 

Brockton WWTP is cited by US EPA as the reason for its refusal to allow additional

 

communities to send their wastewater to the facility. EPA states:  "Increasing flow to the

 

facility by allowing new sewer connections would inevitably contribute to further water

 

quality impairment of the Salisbury Plain River .... We believe increasing the flow at the

 

Brockton facility by having additional communities send their wastewater to the facility

 

will cause further degradation of the Salisbury Plain River." (EPA Response to

 

Comments 19 and 20 Exhibit D)

 

            There are a number of methods available to the Facility to reduce its

 

discharge volume into the Salisbury Plain River, especially during dry weather periods.

 

These include land based application (spraying), construction of storage lagoons and

 

recycling of wastewater for industrial uses. These methods are now being used in many

 

parts of the United States. EPA provides no explanation as to why none of these

 

methods have been explored or required so as to reduce the severe impact of the

 

Facility effluent discharge on the Salisbury Plain, Matfield and Taunton Rivers.

 

This failure is puzzling because EPA itself concludes that the sheer volume of

 

effluent discharged by the Facility is a principal reason for the river's failure to

 

meet its statutory water quality standards.  Statements by EPA show it has scant

 

confidence that allowing the existing volume of wastewater to continue, even with

 

improved treatment, will allow the Salisbury Plain River to meet its statutory water

 

quality standards. This is shown by EPA's statement that:  "EPA and MA DEP

 

believe these measures in conjunction with the plant upgrades will contribute toward

 

minimizing the further degradation of the Salisbury Plain River and move closer toward

 

meeting the State's Water Quality Standards during this five year permit cycle." (EPA

 

Response to Comment 47 Exhibit D) EPA's statement, "will contribute toward

 

minimizing further degradation of the Salisbury Plain River and help the river move

 

closer toward meeting the State's Water Quality Standards"  are material admissions the

 

EPA believes the conditions in the Permit will not allow the Salisbury Plain River to

 

meet its statutory water quality standards during the five year permit cycle.

 

            Petitioners have repeatedly informed EPA that significant reductions in flow

 

volume from the Facility, particularly in dry weather periods, are necessary to allow the

 

Salisbury Plain River to meet its statutory water quality standards. This finding is

 

supported by EPA's conclusion that increasing flow volume of the Facility, even with

 

proposed improvements in effluent treatment, will result in "further degradation" and

 

"further water quality impairment" of the Salisbury Plain River. (EPA Response to

 

Comments 19 and 20 Exhibit D). In short, US EPA has concluded that

 

increase in flow volume or continuation of the existing flow volume at the Facility will

 

cause the Salisbury Plain River to fail to meet its statutory water quality standards.

 

Despite these findings, the Permit requires no reductions in flow volume at the Facility.

 

            In June 2004, Petitioners provided EPA with extensive documentation of

 

recently issued NPDES permits from the State of Maine for wastewater treatment plants

 

on rivers of a size similar to the Salisbury Plain River. This documentation

 

shows that EPA and the State of Maine routinely require wastewater treatment plants

 

to sharply curtail or eliminate direct discharges to small rivers to prevent effluent from

 

dominating the natural flow of a stream.

 

            NPDES license data from the State of Maine shows the maximum allowable daily

 

discharge of treated wastewater into small rivers and streams in Maine is less than 1.0

 

million gallons per day (MGD) with one exception. In contrast, the maximum daily

 

discharge in the proposed NPDES permit for the Facility is in excess of 18 MGD.

 

            In this one exception in Maine (Town of Sanford POTW), the NPDES license

 

forbids any discharge at stream flows lower than 20 cfs. The NPDES permit for the

 

Unity, Maine POTW forbids any discharge at stream flows lower than 15 cfs;

 

the NPDES permit for the Canton, Maine POTW forbids any discharge at stream flows

 

lower than 20 cfs; and the NPDES permit for the Norway, Maine POTW forbids any

 

discharge at stream flows less than 31 cfs. In all of these cases, the receiving waters for

 

these POTWs (Great Works River, 25 Mile Stream, Whitney Brook, Little Androscoggin

 

River) are similar or larger in drainage size and flow volume than the Salisbury Plain

 

River, yet the NPDES permits for these streams prohibit any discharge into them during

 

low-flow conditions and require minimum dilution ratios of 20:1 or more during periods

 

when discharge is allowed.

 

           

This is why when Petitioner Douglas Watts informed Mr. Gregg Wood, P.E. of the Maine

 

Department of Environmental Protection of the dilution ratios at the Facility,  Mr. Wood

 

physically grimaced and said:

 

             "It sounds like they need to find a new receiving water."

 

            In its "Response to Comments" EPA provides no meaningful reply to the

 

above documentation or Petitioners' request that flow volume from the Facility be sharply

 

curtailed during dry weather periods to ensure compliance with statutory water quality

 

standards established for the Salisbury Plain, Matfield and Taunton Rivers.

 

            Despite the obvious need of flow limits in the Permit higher flows are likely in the

 

future. Camp Dresser Mckee (CDM) asserts in public comments that, “In general, there

 

are many references to a design flow of 18.0 mgd, which is the correct flow for the

 

Facility upgraded in the 1970’s. However, over the coming five year permit duration, this

 

design flow rate will be increased to 20.48 mgd. (CDM public comments Page # 1

 

Exhibit D) The Towns of Abington and Whitman will also be allowed to sell their unused

 

flow if an abutting Town with a completed Comprehensive Wastewater Management

 

Plan demonstrates that a tie in to Abington or Whitman is an appropriate option. (Permit

 

footnotes page 4 # 3 Exhibit E) This is unacceptable.

 

 

6. Closing Comments.

 

           

            The Salisbury Plain River has not met its MAWQS at anytime in the history of

 

The Facility. By the late 1970s, this plant was nearing the end of its 20-year design life,

 

and a major plant expansion project was completed in the mid-1980s. Since that major

 

expansion, the Brockton WWTF has not undergone a major plant-wide upgrade program.

 

Shortly after completion of this major plant expansion project the upgraded and

 

expanded plant was failing to meet permit limits, and in 1988 the City of Brockton

 

entered into a consent decree with the regulating authorities. On November 14, 2001

 

 Ma DEP issued a notice of non-compliance to the City of Brockton. Fifteen years ago

 

the City’s newly updated and expanded Facility was failing to meet permit limits less

 

than five years after the update was completed.

 

Today in 2005 we are presented with a similar situation as in the 1980’s. The

 

Administrative Consent Decree agreed to 1988 has been ineffective and a Judicial

 

Consent Decree is now being negotiated between regulating authorities and the City. The

 

initial phase of a major Facility expansion and upgrade has begun and this Permit has

 

been finalized.

 

The Petitioners recognize that all of these events appear to complicate matters

 

regarding this Permit. However, when this whole affair is boiled down to its essence

 

it is not the least bit complicated. What it boils down to is a simple standard clearly

 

defined in the permit, in the Federal Clean Water Act and in Massachusetts State Law:

 

"a. "The discharge shall not cause a violation of the water quality standards in the

 

receiving waters."

 

The Petitioners assert that the limits placed in this permit will in large part determine the

 

terms of the pending Judicial Consent Decree and guide the proposed upgrade and

 

expansion process. If issued as written this Permit will not allow Salisbury Plain River to

 

meet its MAWQS, and therefore the rest of the process will be doomed to failure. The

 

mistakes of the mid 1980’s will be repeated. This Permit as currently written is illegal

 

and must not be issued.

 

 

STATEMENT OF RELIEF REQUESTED

 

The Petitioners incorporate all paragraphs above and exhibits, as if fully set forth there in.

 

For the reasons set forth above, the Petitioners request the following:

 

a. that the Board hold that EPA’s actions and decisions in regard to the

 

Contested Permit Conditions and the Omitted Permit Conditions concerning the

 

discharge of by the Treatment Works were clearly erroneous;

 

b. that the Board review EPA’s permit action for the additional reason that

 

EPA’s exercise of discretion raises important issues of policy and discretion that the

 

Board should review; and

 

c. that the Board reverse and remand those decisions to EPA Region I for

 

action consistent with the Petioners contentions.

 

IX. SUBMISSION OF DOCUMENTS

 

 In addition to the materials submitted herewith, the petitioners reserve their right to

 

submit additional material as may appear necessary and appropriate during the pendency

 

of any review proceedings.

 

 

 

                                                                                                                                                                                                                                                Respectfully Submitted,

                                                                                                                                                                                                                                                Timothy A Watts

                                                                                                633 Wareham St.

                                                                                                Middleboro, Ma 02346

                                                                                                (508) 946-6191

 

                                                                                                Douglas H Watts

                                                                                                38 Northern Avenue

                                                                                                Augusta, ME 04330

                                                                                               (207) 626-8178           

 

 

                                                                                               

   Dated: May 28, 2005                                                                                             

 

 

                                                                                                  

The Petitioners PETITION FOR REVIEW OF NPDES PERMIT NO.

 

MA0101010, ISSUED May 11, 2005

 

INDEX TO EXHIBITS

 

 

A. Written comments submitted by Timothy Watts on draft permit MA0101010 June

2004.

 

B. Written comments submitted by Douglas Watts on draft permit MA0101010 June

2004.

 

C. Written comments submitted by Taunton River Watershed Alliance on draft permit

MA0101010 June 2004.

 

D. EPA response to public comments on draft to final permit MA0101010.

 

E. Final Permit MA0101010 May 11, 2005.

 

F. August 9, 2002 letter from Brian Pitt Team Leader NPDES Unit to Brockton Commissioner of Public Works.

 

G. EPA press release regarding failures at the Facility June 4, 2003.

 

H. Assabet River NPDES Permits – Response to Comments 2004.

 

I. 2005 Draft MA 303d listing for Salisbury Plain River downstream of Facility.

 

J. 2005 Draft MA 303d listing for Salisbury Plain River upstream of Facility.

 

K. 2002 MA 303d listing for Salisbury Plain River upstream and downstream of Facility.

 

L. Written comments submitted by Bridgewater State College Watershed Access Lab on

draft permit MA0101010 June 2004.

 

M. Taunton River Watershed 1996 and 2001 Biological Assessment MA DEP.

 

N. ESS Group Matfield and Salisbury Plain River Watersheds Nonpoint Pollution

Assessment Report and Management Plan MA DEP 2003.

 

Exhibit N, Part A, Sample Site Locations.

 

Exhibit N, Part B, Field Data Sheets

 

Exhibit N, Part C, Field Reconnaissance Observations.

 

Exhibit O, Written comments submitted by National Park Service on draft permit

MA0101010 June 2004.

 

Exhibit P. Letter from Robert Varney Regional Administrator, Region 1 EPA, to the Mayor of Brockton, 2004.

 

Q. Daily discharge flows from the Facility 2002 – 2003.

 

R. Fact Sheet for Draft Permit  MA0101010 May 21, 2004

 

Its about time for an update on Brockton Sewer Plant issues. There are two important actions taking place at once and they will have region wide impacts on our waterways and wetlands. First is the issuance of the new discharge permit. The draft permit is being contested by way of a public hearing by the towns of East Bridgewater, West Bridgewater, Easton, Hanson, Halifax and Avon. They would all like to enlist the services of the Brockton Sewer Plant so they will not have to build their own sewer treatment plants. They are contesting the EPA draft discharge permit because it contains language that would prevent them from hooking up to the Brockton Plant. The hearing date has been set for August 25, 2004 at Brockton High School. The Public Comment period has also been reopened, comments will be accepted until the date of the public hearing, August 25, 2004.

At the same time EPA and Ma DEP have issued a Judicial Consent Decree to the City of Brockton in regard to the sewer plant.

What is a Judicial Consent Decree?

A Judicial Consent Decree is a document and process which details the steps the City of Brockton must take to bring their sewer treatment plant into compliance with the law. The Brockton Sewer Plant has been out of compliance with the law since 1988, and is still out of compliance with the law as I write this. Since 1988 the City of Brockton has been operating its plant under an Administrative Consent Decree, meaning, under the supervision of EPA and Ma DEP. As a result of the City of Brocktons continued non-compliance with the orders issued by EPA and Ma DEP since 1988, EPA and Ma DEP have elected to turn the matter over to the US Attorneys office in the form of a Judicial Consent Decree.

EPA Region 1 and Ma EPA have submitted what they consider a reasonable course of action to bring the City of Brockton into compliance with the law. The US Attorneys office has agreed to these terms and has agreed to enforce them.

The City of Brockton has this document in hand now and must make a decision to sign on to it or not. This document is open to negotiation and this process can last up to two years. Once the City of Brockton signs on they are bound to it and will be subject to the full penalties of the law if they fail to comply. If the City of Brockton does not sign on to the terms of the Judicial Consent Decree in a timely fashion the matter gets turned over to a Federal Judge.

What are the implications of our decisions?

For the River, meaning the Salisbury Plain, Matfield and Upper Taunton River.

The Matfield and Salisbury Plain are already trashed. In the summer their flow is effluent. It’s a fact. The upper Taunton is not far behind, and the addition of sewer flow to the Brockton Plant from the above mentioned towns will nail down the lid of the coffin on the aquatic ecosystem of the upper Taunton River. The upper Taunton will become the Matfield, its simple mathematics, X amount of river flow to effluent.

For the current and future rate payers.

It doesn’t work, it’s a fact.

The United States Clean Water Act clearly states that all our waterways will be fishable and swimable.

Would you fill your swimming pool with the effluent discharged by the Brockton Sewer Plant?

Would the Mayor of Brockton fill his swimming pool with the effluent discharged by the Brockton Sewer Plant?

Would the engineers from Camp Dresser McKee fill their swimming pools with the effluent discharged by the Brockton Sewer Plant?

Would the residents of Easton want the waste water of one hundred and thirty thousand people going down Queset Brook through Sheep Pasture or Canoe River?

Would the residents of East Bridgewater want the waste water of one hundred and thirty thousand people going down Satucket?

Would the residents of West Bridgewater want the waste water of one hundred and thirty thousand people going down the Town River at War Memorial Park?

Would the residents of Halifax want the waste water of one hundred and thirty thousand people going down the Winnetuxet River.

People can not safely swim in the Salisbury Plain, Matfield or Upper Taunton Rivers, it’s a fact. The law clearly states that we should be able to. If the City of Brockton and the above mentioned towns pursue and succeed in their current course of action the Salisbury Plain, Matfield and Upper Taunton Rivers will not meet the requirements of the law, to be swimable. Therefore, twenty years from now the rate payers will be forced to bear the burden of their city and towns shortsightedness in regard to this issue. What the City of Brockton and the above mentioned towns are now proposing will cost the rate payers dearly now and again in the future because we will have to do it all over again twenty years from now. It simply does not work, you cannot flush the wastewater of one hundred and thirty thousand people down a small river system and expect it to function as a river system. Our river systems will continue to fail from both an aesthetic and biological perspective, it’s a fact and rate payers will be forced to pay over and over again to achieve an unachievable goal.

    Updated Summary of events regarding the plant

 

First some background info on how we arrived at this point. The upgrade to the plant was brought about as a result of a Notice of Non-Compliance issued by Ma DEP on Nov, 14 2001. At that time the city was forced to update the plant or face heavy fines for their continued Non-Compliance which had been going on since 1988. The plant fell out of compliance in 1988 a few years after significant moneys had spent to upgrade the plant in the early 1980's.

The city responded to the 2001 notice by hiring the engineering firm of Camp Dresser McKee (CDM) to evaluate and propose the necessary upgrades to the plant. On March 18, 2002 the city held a public meeting where CDM outlined their findings and upgrade proposal. At a projected cost of 52.8 million dollars the proposed upgrade was inadequate and the city and CDM knew it. EPA had given the city fair warning in the 1999 discharge permit that any upgrades to the plant should be designed to meet future water quality goals and future permit limits. Despite these warnings the city chose to spend considerable money to propose an upgrade that they knew was inadequate. It was inadequate because they planned the upgrade to meet their current, 1999 permit, not the future 2003 permit as EPA suggested.

EPA responded to this proposed upgrade in a letter sent to the city on August 2002. The letter made it very clear to the city that the proposed upgrade was inadequate and if they chose to go forward with it they would do so at their own risk. EPA also stated the following in this letter "The reissued permit will contain a flow limit. An increase in flow will not be authorized without a determination that toxicity and nutrient issues can be addressed to a level that will result in full attainment of the designated uses of the receiving water."

The city responded to this and agreed to step up some of the important treatment processes, specifically more intensive nitrogen and phosphorous removal. Unfortunately the city also decided to expand the capacity of the plant by 2 ½ million gallons per day (mgd). It’s capacity was 18 mgd and now is going to be 20.5 mgd.

For some reason EPA is not comfortable putting flow limits on these plants. Rather than put a flow limit in the permit EPA responded to the proposed plant expansion by informing the city that the permit they were drafting would contain language limiting hookups to communities outside the city limits. They Mayor responded to this with a letter of protest (for lack of a better word). EPA responded to the Mayor by reiterating that without reduced flows Salisbury Plain River would probably not meet its water quality standards after the upgrade. These letters were exchanged in January 2004. EPA and the city continued to negotiate the terms of the draft permit through the winter and spring of 2004. While I am not privy to the details of these negations, it appears that the following agreement was reached. EPA would allow the city an extra three years to fix their dilapidated sewer delivery system (from 4 years to 7) and the city would agree to allow no more additional hookups to outside communities. EPA then drafted the permit and put it out for public comment in May of 2004.

Unfortunately while much of the above was going on the City and surrounding towns were actively planning to use the proposed expanded plant to service their towns. It would be a win win situation the towns would get sewer service for less expenditure than building their own plants, and the City would be able to minimize the cost of the forced upgrade by charging these towns for the service.

What appears to be a solution is a long term problem. If all of these towns are allowed into the system the river will not meet its assigned standard, and history will repeat itself. Ten or fifteen years from now we will be going through this same process all over again, at a tremendous cost to both ratepayers and the environment.

If on the other hand the City builds the plant as proposed with perhaps a few revisions and keeps other communities from hooking up it will be a significant step forward. As the City repairs their sewer delivery infrastructure flows will be reduced to the plant and things will get better. It will not be the final step but it will be an incremental step forward. That’s all we are looking for, a step forward. Expanding this plant is a huge step backwards and if it happens we will continue to pay and pay over and over again.