EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
ONE WINTER STREET, BOSTON, MA 02108 617-292-5500
August 23, 2010
In the Matter of Docket No. 2008-114
Town of Plymouth Plymouth
RECOMMENDED FINAL DECISION The Southeast Regional Office of the Department of Environmental Protection (“the Department”) issued a groundwater discharge permit to the Town of Plymouth (“Plymouth”) in 2008. An appeal was filed by the Eel River Watershed Association (“ERWA”), claiming violations of the groundwater and surface water quality standards related to nutrients and the failure to comply with procedural requirements.1 The permit was based upon the recommendations of the Eel River Nutrient Technical Advisory Committee (“TAC”) in a report entitled Evaluation of Nutrient Inputs and the Health of the Eel River System, Plymouth MA, in Support of a Nutrient Management Plan (January 2000) (“TAC Report”). The TAC recommended a “zero discharge policy” for phosphorus. The permit required Plymouth to meet special conditions related to phosphorus and to implement a Nutrient Management Plan (“NMP”). ERWA claimed that the Department must require reduction of nitrogen in the discharge and establish effluent limitations based on a Total Maximum Daily Load (“TMDL”) analysis to prevent degradation of the Eel River from nutrients loads attributed to all sources in the watershed, and in the interim, to require changes in the operation of the plant.
I conclude that the Department properly established effluent limitations and monitoring requirements in the permit. The permit and the NMP are sufficient to protect the existing uses of the Eel River, and to protect the existing level of water quality related to the groundwater discharge from the facility. I recommend revisions to the text of the permit which clarify the intent of the Department as to the enforceability of the NMP. My findings as to water quality reflect my acceptance of the scientific evidence on the role of phosphorus limitation in the Western Branch of the Eel River and the case law on the applicability of surface water quality standards in the context of a groundwater discharge permit. SeeFriends and Fishers of the Edgartown Great Pond v. Department of Environmental Protection, 446 Mass. 830(2006); Richard Healer v. Department of Environmental Protection, 75 Mass. App. Ct. 8 (2009). Finally, I find that the Department did not prepare a fact sheet but that no remedy is required as neither ERWA, nor apparently any other interested party, requested a copy as required under the regulations.
ISSUES IDENTIFIED FOR ADJUDICATION2
1. Whether the groundwater discharge permit meets the applicable requirements for the establishment of discharge limitations at 314 CMR 6.07(2)?3
2. Whether the groundwater discharge permit meets the applicable requirements for Monitoring at 314 CMR 6.08?4
3. Whether the groundwater discharge permit meets the requirements, to the extent applicable, of the antidegradation provisions at 314 CMR 4.04(1) and/or (2)?5
4. Whether the Department complied with the procedural requirements of 314 CMR 2.05, 314 CMR 2.04(2) (second sentence) and/or 314 CMR 2.06(3)(a), and if not, what remedy is required?6
This groundwater discharge permit was preceded by problems with wastewater treatment in Plymouth beginning in the 1970s, when the original plant discharging to Plymouth Harbor exceeded its capacity. Frizzell PFDT, Exhibit 1. Attempts to bring the plant into compliance were not successful, and the Commonwealth commenced action against the Town for violation of the state Clean Waters Act in 1987. M.G.L. c. 21, ss. 27-53. In 1992, Plymouth and the Commonwealth entered into a Consent Decree, subsequently amended in 1994, and the Town began facilities planning for its wastewater treatment and Massachusetts Environmental Policy Act (“MEPA”) review. Id. Although only portions of the planning documents were submitted for inclusion in the record, it appears that the focus of concern related to water quality was the nutrient nitrogen. ERWA appealed the MEPA Certificate on the project, but was found not to have standing. Enos v. Secretary of Environmental Affairs, 342 Mass. 132 (2000). The facility was planned for a maximum permitted discharge of 3.45 MGD, with 1.75 MGD to the harbor outfall and .75 MGD initially, with potential to increase to 1.25 MGD, to groundwater through infiltration beds at the site. The TAC was established in 1999 by the Department to provide information and recommendations on nutrient issues in the Eel River watershed. The Department issued a groundwater discharge permit in 2000, with a requirement that Plymouth develop and submit for approval a nutrient management plan. The 2000 permit expired and was replaced by the 2008 permit.7
ERWA filed a Motion to Compel Discovery, seeking entry into Plymouth’s wastewater treatment plant to examine ongoing treatment processes and plant conditions. ERWA stated that the limited effluent monitoring under the permit required an evaluation of treatment plant operations to determine whether the permit conditions and monitoring protect the receiving waters with a reasonable margin of safety under 314 CMR 6.07(1) and 314 CMR 6.08.8 ERWA also sought data on operation and maintenance of the plant and data on septage delivered to the plant, including a list of the septage haulers. Finally, ERWA sought documents on compliance with restrictions on flow contained in the 1994 Modified Consent Judgment.9 ERWA stated that its discovery requests were relevant to effluent strength and volume, which in turn were relevant to the question of whether permit conditions were protective of receiving waters, and limiting the analysis to the discharge at end-of-the-pipe would preclude an opportunity to assess the potential for protecting the receiving waters prior to discharge. 314 CMR 6.07(2).
In Plymouth’s view, information on treatment plant conditions was beyond the scope of the proceedings, which was limited to water quality, and would be akin to an enforcement proceeding rather than a permit appeal. Plymouth stated that allowing entry to the plant raised safety concerns and would be unduly burdensome to plant employees, especially as ERWA had not articulated the manner of making the inspection as required. 310 CMR 1.01(12)(d). Plymouth argued that it had provided operational statistics from 2002 to 2008 which include a column indicating the amount of septage received on a daily basis and further detail on septage receipts and hauler information. Plymouth took the position that documents related to sewer banking stemming from the 1994 Modified Final Judgment were beyond the scope of the proceeding and rest solely within the Department’s exercise of its enforcement discretion. Matter of Augustine Luongo, Docket No. 98-053, Final Decision (March 4, 1999). The Department also objected to ERWA’s request as an impermissible attempt to seek enforcement.
Under the adjudicatory hearing rules, parties may move to compel discovery where another party has not cooperated in good faith following attempts to conduct discovery that is not overly broad, unduly burdensome, and is reasonably calculated to lead to the discovery of relevant, admissible evidence. 310 CMR 1.01(12) (d). Issues of whether Plymouth has violated its permit or the Modified Consent Judgment are not within the scope of issues identified for adjudication and, further, could not be remedied in this forum. Matter of Augustine Luongo, Docket No. 98-053, Final Decision (March 4, 1999). The focus of this appeal is the contents of the permit, which are apparent within the four corners of the permit itself, and the specified water quality requirements rather than the operation of the treatment plant.10 Thus, the discovery dispute was resolved by the exclusion of enforcement matters and adherence to the issues identified for adjudication. See Rulings on Motion in Limine, Motions Related to Discovery, Motion to Remand and Reverse Burdens, and Motion to Stay (April 29, 2009).
Motion in Limine to Clarify Issues; View
The Department moved in limine for an order or instruction clarifying the scope of the issues, the relevant evidence, and limitations on the inclusion of enforcement matters in the appeal. Plymouth also requested clarification on the issues. ERWA responded that it sought to show areas where the plant was not operated in compliance with the permit and other approvals, that the permit is not by itself protective of anything, and that operating conditions at the plant are relevant to whether permit terms are protective of the receiving waters.11 Although from opposite perspectives, the parties seemed unduly focused on the identification of permit violations.12 Plymouth had provided monitoring data not only on the effluent but also on the groundwater and surface water quality. I provided the requested clarification, without benefit of briefs, of the regulatory requirements for the protection of surface water from a groundwater discharge. See Rulings on Motion in Limine, Motions Related to Discovery, Motion to Remand and Reverse Burdens, and Motion to Stay (April 29, 2009). I conducted a view of the Eel River and related ponds on July 18, 2009, for the purpose of familiarizing myself with the water body that is the subject of this appeal.
Ruling on Issue 4. Whether the Department complied with the procedural requirements of 314 CMR 2.05, 314 CMR 2.04(2)(second sentence) and/or 314 CMR 2.06(3)(a), and if not, what remedy is required?
In its procedural rules for the issuance of groundwater permits, the Department is required to prepare a fact sheet and to issue a draft permit that contains terms and conditions which the Department deems necessary to insure that the permitted activity or facility complies with the applicable requirements. ERWA asserted that the Department should be required to reissue the permit due to failure to comply with all procedural requirements for public notice and comment. The Department provided copies of its properly published public notice, but conceded that it did not prepare a fact sheet or statement of basis for the permit. I concluded that although the Department had not prepared a fact sheet as required, no remedy is necessary. See Rulings on Motion in Limine, Motions Related to Discovery, Motion to Remand and Reverse Burdens, and Motion to Stay (April 29, 2009).
Specifically, ERWA stated that a fact sheet required under 314 CMR 2.05 was not prepared or sent to it, despite the Department’s knowledge of its ongoing and long-standing involvement with water quality issues in the watershed. ERWA further claimed that the Department failed to acknowledge its comments on the prior draft permit, to consider relevant monitoring information that was available prior to permit issuance, or to include terms of the Modified Consent Judgment. ERWA requested remand to the Department for development of a proper record or shifting the burden to Plymouth and the Department.13
Plymouth responded that, even were a fact sheet not prepared, ERWA was not prejudiced nor was the permitting process flawed. In Plymouth’s view, neither remand nor a shift of burdens was warranted; the remedy for any technical flaw would be an order to the Department to prepare a statement of basis for the record. Consistent with the Town, the Department argued that ERWA did not request a copy of the fact sheet and therefore was not prejudiced. The Department further stated that the fact sheet, had it been prepared, would not differ substantially from the fact sheet prepared in 1999 for the 2000 permit. The Department stated that it had provided a copy of the permit to ERWA as a courtesy.
I found no defect in the public notice for the permit related to the procedural requirements of 314 CMR 2.06(3)(a). The Department, however, did not comply with the procedural requirements of 314 CMR 2.05 or 314 CMR 2.04(2)(second sentence) because it did not prepare a fact sheet for the 2008 permit. The regulations require the Department to provide a copy of the fact sheet to interested persons, other than the applicant, only upon request. ERWA has not produced a copy of a written request or asserted that an oral request was made, and the Department states that no request was received. Thus, even if the fact sheet had been prepared, it would not have been released to ERWA or any other interested person. The Department further stated that it received no comments on the draft permit at all. As to ERWA and the public, therefore, no remedy is required. Despite having not requested a fact sheet or submitting comments on the 2008 draft permit, the ERWA had a full opportunity to challenge the Department’s action in this appeal. SeeMatter of Town of Hamilton, Town of Topsfield, Town of Wenham, Docket Nos. 2003-065, 2003-079, 2003-068, Recommended Final Decision (January 19, 2006). The Department prepared and submitted a statement of basis for inclusion in the record and to ensure its availability should the Department receive a request for it.14
The TAC Report
The Department convened the TAC to synthesize scientific information, evaluate resource concerns, and report its findings. The purpose of the TAC Report was to provide the basis for recommendations to the Department for preventing significant ecological decline related to effluent from the treatment plant and to changes in land use, primarily from residential development. TAC at I-3.15 All parties relied upon the TAC Report, and I provide a summary of its contents in light of its central importance to the Department’s permit, the Nutrient Management Plan, and the testimony of the Parties.
The issues for adjudication related to the discharge and its effects on the Eel River were limited to the nutrients nitrogen and phosphorus, and the relationship between these nutrients effects water quality. Plants require specific proportions of nitrogen and phosphorus for growth. TAC at VI-1. A nutrient in excess of its proportion, or further additions of the excess nutrient, generally will not cause plant growth that will adversely affect water quality. In contrast, addition of the limiting nutrient will have the effect of stimulating plant growth. TAC at VI-1. The TAC Report stated that the Eel River system currently has low levels of nutrients, with higher levels in the Western branch, and may alternate between nitrogen and phosphorus limitation, with only a small increase in one nutrient shifting the limitation to the other. TAC at IV-2. In developed watersheds where nitrogen concentrations become very high, pulses of inorganic phosphorus may cause blooms. Id. The TAC concluded that in the Eel River watershed, nitrogen will increase proportionately more than phosphorus and with increased development the system will become “strongly phosphorus limited.” Id.
The TAC Report stated that phosphorus limitation may be “better” than nitrogen limitation for the Eel River. TAC at VI-2. With phosphorus limitation, higher levels of nitrate will not affect biota. TAC at VI-2. Phosphorus limitation does not result in the predominance of blue green algae that occurs with nitrogen limitation, and phosphorus management is often more efficient and cost-effective than nitrogen management. TAC at VI-2. The watershed naturally retains phosphorus and is characterized by high infiltration to groundwater, with surface water runoff of less than 10%. TAC at VI-2. The Eel River system is also characterized by short residence times and high throughput of water, so that phytoplankton blooms tend to wash out rather than become established. TAC at VI-2. However, increased phytoplankton levels in upper reaches, such as Russell Mill Pond which tends to trap nutrients, may lead to blooms in lower reaches and increases in residence times may increase blooms. TAC at VI-3.
The TAC evaluated the projected health of the Eel River system in light of future watershed development, with increased nutrient and flow levels:
It is clear that with a shift from undeveloped land to residential and recreational development and with the Plymouth WWTP discharge, nutrient levels within the Eel River System will increase. Nitrogen levels will increase faster than phosphorus, as a result of their differential transport through groundwater. The result will be a strong phosphorus limitation for phytoplankton and periphyton within the receiving freshwater ecosystems. The freshwater systems will have sufficient inorganic nitrogen levels that any additional bioavailable phosphorus will have a stimulatory effect on algal production. . . .The most likely result of increased nutrient loading is increased phytoplankton growth and the frequency of blooms. . . .The likelihood of significant ecological shifts depends upon the ability to prevent phosphorus increases in parallel to the nitrogen increases which will occur.
TAC at VII-1 and VII-2.16 The groundwater discharge from the wastewater treatment plant flows toward the Western Branch of the Eel River. TAC at Figure IV-1 (prepared by CDM).17 The TAC also concluded that the increased volume from the treatment plant would not negatively impact the Western Branch, because the plume will have the same levels of bio-available phosphorus as the receiving waters and the increased flows will hasten the export of phytoplankton and other organic matter from the freshwater system. TAC at VII-1. Finally, the TAC evaluated the effect of an approximately projected doubling of the nitrogen loads from the Eel River system to Plymouth Harbor, in the context of the upgraded facility, and concluded that adverse effects were not likely. TAC at VII-4.
The TAC Report estimated present and future nitrogen and phosphorus loadings from the watershed, with the level of enrichment determined by the balance of loadings and attenuation. TAC at V-1. Because nitrogen (as nitrate) is much more mobile in the aquifer than inorganic phosphorus (orthophosphate), nitrogen levels were expected to increase more rapidly and to a greater extent than phosphorus. Id. The TAC’s conclusion from the nitrogen and phosphorus loading analysis was that the much greater increases in nitrogen will result in the system becoming strongly phosphorus limited and any increase in phosphorus will directly affect plant production. TAC at V-3. Strict controls on phosphorus would be necessary to reduce declines in water quality from future nitrogen loads.18Id..
In management recommendations to address watershed nutrient issues, the TAC advocated a zero discharge policy for phosphorus:
Since nitrogen levels within the watershed will increase under changing watershed land-use (even if best management practices are used), a zero discharge policy for phosphorus is recommended to be instituted. The objective is to prevent increases in phosphorus loading to the surface freshwater sub-systems to the Eel River. The logical management approach to implement this is through the development of a policy that requires no net increase in phosphorus loading to the freshwater aquatic ecosystems of the Eel River System. The focus on phosphorus stems from the fact that under future conditions, each increase in phosphorus will have a stimulatory effect on algal production. The target concentration for discharges should be phosphorus levels no higher than measured in the receiving waters . . . .
TAC at VIII-1. For nitrogen, the TAC recommended a “study and see” approach of monitoring, assessing any change, and implementing nitrogen management if necessary. The TAC assumed nitrogen loads and concentrations would increase and stated that “[g]iven the current understanding of the freshwater systems, particularly macrophyte and periphyton communities, it is unknown if the increase in nitrogen will sufficiently stimulate algal production to harmful levels.” TAC at VIII-1. Despite its emphasis on phosphorus control, the TAC strongly recommended that nitrogen management be undertaken as feasible. Id.
The TAC developed management recommendations for Plymouth’s treatment plant, including ensuring that the effluent plume does not become anoxic, the pH is controlled, and monitoring confirms adsorption, with a plan to implement phosphorus removal if sufficient phosphorus attenuation is not realized. TAC VIII-2 and VIII-3. The TAC recommended evaluation of the ponds and their biota as the primary indicators of the system’s overall health, the identification of management options for mitigation in the NMP if nutrient over-enrichment occurs, with a higher threshold for the Western Branch due to its current mesotrophic status. TAC at VIII-4. The TAC also prepared recommendations for water quality monitoring. As to nutrients, it urged strict detection limits and annual reviews to ascertain shifts in conditions relative to baseline. As to monitoring related to the treatment plant, the TAC recommended groundwater monitoring within the plume to determine any potential for breakout of phosphorus from saturation of sorption sites or anoxic groundwater and to confirm location of entry and attenuation of phosphorus prior to reaching surface water. TAC at VIII-4 and VIII-5.
The 2008 Permit
The Department issued a discharge permit which specified an annual average flow limit of 0.75 MGD and effluent limits for total nitrogen (NO2+NO3+TKN) of 10 mg/l, for nitrate nitrogen of 10 mg/l, and for pH of 6.0 – 7.5. The permit contains no discharge limit for phosphorus, but requires effluent monitoring twice monthly for both nitrogen and phosphorus and reporting on water quality in nine monitoring wells for a variety of parameters, including nitrogen and phosphorus. In addition to effluent limits and monitoring requirements, the permit at Supplemental Condition 1 stated:
The Town agrees to implement the Nutrient Management Plan (as amended) (NMP) and approved by the Department to address nutrient impacts to the Eel River system from the various sources within the Eel River watershed.
Supplemental Condition 5 stated:
The movement of phosphorus contained in the wastewater treatment plant effluent shall be carefully monitored in the subsurface environment. The Town has prepared a contingency plan which shall be implemented if an increase in phosphorus is detected. This plan is included in the January 2001 Nutrient Management Plan.
The condition identified the five wells immediately adjacent to the infiltration beds (A8, A9, A10, A11, and A16) and four wells downgradient at the property boundary (6S, 6D, 1S, and USGS 475), all subject to predischarge sampling.19 If any of the four downgradient wells showed an increase of >100% over the background level for either three consecutive monthly samplings or four out of six consecutive monthly sampling periods, Plymouth is required to meet with the Department to establish a compliance schedule for implementing increased phosphorus removal at the treatment plant. If any of the four immediately adjacent wells shows a total phosphorus concentration of 0.2 mg/l or greater for either three consecutive monthly samplings or four out of six consecutive monthly sampling periods, Plymouth is required to meet with the Department “to discuss how to proceed with treatment plant operation and potentially reducing effluent phosphorus concentrations.” 2008 Permit, Supplemental Condition 5. Other supplemental conditions require annual submission of infiltration and inflow plans, assessment of groundwater mounding, annual reporting related to mitigation for increased wastewater flows, and various operation and maintenance requirements.20