Upper Blackstone Water Pollution Abatement Dist. v. U.S. Envtl. Prot. Agency

• Decision Date: 03 August 2012
• Docket Number: Nos. 11–1474,11–1610.,s. 11–1474
• Citation: 690 F.3d 9
• Parties: UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Conservation Law Foundation, Inc., Petitioner, v. Upper Blackstone Water Pollution Abatement District, Intervenor, United States Environmental Protection Agency, Respondent.
• Court: U.S. Court of Appeals — First Circuit

690 F.3d 9

UPPER BLACKSTONE WATER POLLUTION ABATEMENT DISTRICT, Petitioner,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Conservation Law Foundation, Inc., Petitioner,

v.Upper Blackstone Water Pollution Abatement District, Intervenor,United States Environmental Protection Agency, Respondent.

Nos. 11–1474, 11–1610.

United States Court of Appeals, First Circuit.

Heard Jan. 12, 2012.

Decided Aug. 3, 2012.

Robert D. Cox, Jr., with whom Douglas T. Radigan, Bowditch & Dewey, LLP, Fredric P. Andes, and Barnes & Thornburg LLP, were on brief, for petitioner Upper Blackstone Water Pollution Abatement District.

Christopher M. Kilian, with whom Anthony N.L. Iarrapino was on brief, for petitioner Conservation Law Foundation.

Madeline Fleisher, with whom Ignacia S. Moreno, Assistant Attorney General, U.S. Department of Justice, Environment and Natural Resources Division, and Samir Bukhari, Ira W. Leighton, Karen A. McGuire, U.S. Environmental Protection Agency, were on brief, for respondent.

Donald L. Anglehart on brief for City of Marlborough, amicus curiae.

David M. Moore, City Solicitor, and Jennifer H. Beaton, Assistant City Solicitor, on brief for City of Worcester, amicus curiae.

Karma B. Brown, Brooks M. Smith, Hunton & Williams LLP, and Nathan Gardner–Andrews on brief for National Association of Clean Water Agencies, amicus curiae.

Before LYNCH, Chief Judge, SOUTER, Associate Justice,^* and STAHL, Circuit Judge.

LYNCH, Chief Judge.

These petitions seek review of certain effluent limitations imposed by the Environmental Protection Agency (EPA) in a National Pollutant Discharge Elimination System (NPDES) permit on the discharges of Upper Blackstone Water Pollution Abatement District, a sewage treatment plant located in central Massachusetts.

The District's discharges are into the headwaters of a polluted river which, in due course, flows into other rivers, and ultimately empties into Narragansett Bay. The states of Massachusetts and Rhode Island each have strong interests in the health of these waters and generally have supported the EPA's decisions during the permitting process. The District, supported by its member towns, has an interest in avoiding compliance costs associated with the permit and has challenged the effluent limitations as premature and unsupported by the scientific record. We have stayed enforcement of the permit during this appeal and while the parties were engaged in settlement negotiations in a court-sponsored settlement program. We now lift the stay, deny the petitions, and find no error in the EPA's final permit decision.

I.

The Blackstone River is a major, interstate freshwater river which runs south from Worcester, Massachusetts, crosses the border into Rhode Island, and continues on to Pawtucket Falls. There, it reaches sea level, becomes tidal, and changes its name to the Seekonk River, which, in turn, flows into the Providence River,¹ and ultimately empties into Narragansett Bay. The Blackstone River provides a significant source of freshwater to the Bay.

At the peak of the industrial revolution, water-powered textile mills lined the Blackstone River; dams, millponds, and canals altered its natural course and halted its flow at points. Toxic sediments of heavy metals and other industrial waste products released into the River accumulated behind its many impoundments and damaged its ecology. Today, industry has moved on; its legacy remains in leftover dams and the toxic sediments held in place behind them.

With the discontinuation of industrial river dumping, the River's health has dramatically improved. Massachusetts and Rhode Island now seek to put the River to new economic and recreational uses including tourism, recreation, and commercial fishing. The new limiting factor, and the subject of dispute in this case, is not the River's industrial legacy, but sewage treatment. As population has increased along the River, sewage processing has not kept apace. An influx of nitrogen and phosphorus from sewage treatment plants is causing serious problems for the River's waters and those downstream.

The Blackstone, Seekonk, and Providence Rivers, and Narragansett Bay, all suffer from severe cultural eutrophication, a process fueled by unnaturally high concentrations of nitrogen and phosphorus. When excessive levels of these chemical nutrients are introduced into a water system, algae populations rapidly multiply to nuisance levels. As populations “bloom” and die-off in quick succession, dead algae accumulate and decompose—their nutrient-laden remains further enriching the immediate environment, thereby perpetuating the eutrophication cycle. Increased rates of respiration and decomposition depletethe available dissolved oxygen in the water, threatening other plant and animal life in the system. When oxygen saturation levels drop below what is needed by fish and invertebrates to breathe, the waters become host to fish kills, red tides, and shellfish poisonings, events which can pose threats to human health as well.

Phosphorus drives cultural eutrophication in freshwater systems and nitrogen drives the same process in marine waters. The Blackstone River currently suffers from severe phosphorus-driven cultural eutrophication. Algae blooms, thick, cloudy waters, putrid smells, and sudden fish kills periodically contaminate its waters. The numerous dams and impoundments along the River create areas of stagnant water where nutrients collect and cultural eutrophication flourishes. The toxicity build-up behind the dams and serious concerns about resuspension of the contaminated sediments rule out an easy solution to this problem.

Narragansett Bay and the Seekonk and Providence Rivers, in turn, are each affected by the Blackstone's degraded waters. Narragansett Bay, the ultimate depository for all the nutrients carried by the Blackstone, suffers from severe nitrogen-driven cultural eutrophication. The Seekonk River, which forms the uppermost part of the Bay, is the most seriously impaired by the Blackstone's nitrogen loadings.

Conditions in the three rivers and the Bay have been deteriorating for many years. Increased domestic waste inputs into the rivers are worsening their nutrient-related problems. Among the numerous events documented in the record, severely hypoxic (waters characterized by levels of dissolved oxygen below what is needed by aquatic organisms to breathe) to nearly anoxic (waters completely depleted of dissolved oxygen) conditions, along with associated fish kills, were observed in upper Narragansett Bay, including the Providence River, in the summers of 2001 and 2002. August 2003 witnessed one of the Bay's largest fish kills in history, when more than one million fish died in anoxic water conditions near East Greenwich, Rhode Island.

The Rhode Island Department of Environmental Management (RIDEM) has set up response teams which monitor the Bay continuously and publish public notices when bacterial or pollution conditions pose a threat to public health and commercial fishing.² In recent years, the state has been forced to close down some of the Bay's beaches and commercial fishing grounds entirely, measures which damage state tourism and recreation businesses, and which place the state's commercial fishing and shellfishing industries in jeopardy.

Recognizing the watershed's growing problems, and motivated by the desire to improve its resource value, Massachusetts and Rhode Island have begun implementing comprehensive plans to rehabilitate the three rivers and the Bay. These efforts build on decades of work by both government actors and private groups to study and address nutrient-related problems in the watershed.

Congress designated the Blackstone River Valley as a National Heritage Corridor in 1986 for the purpose of recognizing the historical significance of the River and restoring its watershed. The EPA formed the Narragansett Bay Project in the 1980s and the Blackstone River Initiative in the 1990s, to study, among other issues, the impacts of cultural eutrophication on the water systems. The Governors of Massachusetts and Rhode Island first signed a Memorandum of Understanding in 1992 to underscore the two states' commitments to studying and restoring the watershed. In 1998, President Clinton designated the Blackstone River an American Heritage River. Bills “[t]o establish the John H. Chafee Blackstone River Valley National Historic Park” are currently before both houses of Congress. S. 1708, 112th Cong. (2011); H.R. 3191, 112th Cong. (2011).

Federal, state, and local governments, businesses, and an array of outside groups and coalitions have funded and conducted numerous scientific studies on nutrient-related problems in the three rivers and the Bay. The EPA considered many of these studies in setting the 2008 permit limits; just a few of those included in full in the administrative record in this case are studies conducted by Massachusetts ³ and Rhode Island,⁴ as well as the U.S. Army Corps of Engineers ⁵ and the EPA.⁶

Although nitrogen and phosphorus end up in the rivers and the Bay from diverse sources, including storm run-off, agricultural fields, and construction sites, sewage treatment facilities are the primary source of anthropogenic nutrient inputs into the Seekonk and Providence Rivers and the Bay. Thus, a critical component of both states' rehabilitation plans has been to impose tighter limits, under the Clean Water Act (CWA or the “Act”), on the amounts of nitrogen and phosphorus that sewage treatment facilities may discharge into the rivers and the Bay.

The CWA was enacted by Congress to address the serious threats water pollution poses to public health, economic activity, and the long-term viability of the Nation's water resources. 33 U.S.C. §§ 1252(a), 1313(c)(2)(A). The Act's primary goal is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” Id. § 1251(a). States and the federal government...