ELR Citation: 42 ELR 20161
No(s). 11-1474, -1610 (1st Cir. Aug 3, 2012)

The First Circuit denied a petition challenging an EPA NPDES permit setting forth discharge limits for nitrogen, phosphorous, and aluminum for a large sewage treatment plant along the Blackstone River in Massachusetts. A water district that operates the treatment plant argued that EPA should have waited to issue the permit until after it could complete both its facility upgrades and its new computer model of the Blackstone River. But EPA did not act arbitrarily here in deciding to issue the permit when it did. The CWA requires EPA to review and reissue permits every five years, and neither the Act nor EPA regulations allow for the district's requested delay. Likewise, neither the CWA nor EPA regulations permit EPA to delay issuance of a new permit indefinitely until better science can be developed, even where there is some uncertainty in the existing data. In addition, EPA found that even with the fully completed facility upgrades, the district's discharge would still cause, have the reasonable potential to cause, or contribute to a violation of water quality standards. The district also argued that key parts of the scientific record were inadequate and unreliable, and that the Agency irrationally based the permit's limitations on this flawed record. But the nitrogen limit EPA chose is justified by the record and within the zone of reasonableness. Similarly, EPA's decision to consider its national and regional phosphorus guidance criteria in addition to site-specific data in setting the phosphorous limit was not arbitrary or capricious. And the district waived its challenge to the limit for aluminum discharges because it failed to raise it during the public comment period.