November 27, 2023 - Town of Lexington

U.S. Environmental Protection Agency · from the EPA · 3 pages · 146 KB
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MINA S. MAKARIOUS 
mmakarious@andersonkreiger.com
T: 617-621-6525 
November 27, 2023 
Michele Barden
U.S. Environmental Protection Agency –
Region 1
5 Post Office Square, Suite 100 (06-1)
Boston, MA 02109
barden.michele@epa.gov 
Claire Golden
Surface Discharge Program
Massachusetts Department of Environmental
Protection
150 Presidential Way
Woburn, MA 01801
massdep.npdes@mass.gov 
RE: Comments on Draft Permit No. MA0103284 for the MWRA Deer Island Treatment Plant 
Dear Ms. Barden and Ms. Golden, 
The Town of Lexington appreciates the opportunity to comment on the National Pollutant
Discharge Elimination System (“NPDES”) draft permit No. MA 0103284 (the “Draft Permit”)
for the Massachusetts Water Resources Authority (the “MWRA”) Deer Island Treatment Plan
(“Deer Island”). Lexington is one of the over four dozen communities that receives water from
the MWRA and relies on the MWRA sewer system for secondary wastewater disposal and
treatment. 
We write to express Lexington’s complete concurrence with the concerns raised by the MWRA
Advisory Board (the “Advisory Board”) on behalf of the communities served by the MWRA.
For the reasons the Advisory Board explains, the Environmental Protection Agency (“EPA”)
lacks the authority to include communities served by MWRA as co-permittees under the Draft
Permit. EPA’s proposed permit risks making Lexington responsible for wastewater discharges
by other MWRA communities over which it has no control, not to mention the final treatment
and discharge at Deer Island, which Lexington neither owns or controls. Adopting the Draft
Permit also would result in unknown, but likely significant, costs of compliance that upend the
very purpose of the MWRA to efficiently manage wastewater at the regional level. 
This approach represents a significant and unjustified departure from the MWRA’s prior permit.
Notably, the 2000 Final Permit only mentions co-permitting twice, both times in Section 18 –
Operation and Maintenance of the MWRA Sewer System as a potential enforcement mechanism
to punish communities that have failed to cooperate with MWRA in MWRA’s management of
its own permit: 
ANDERSON & KREIGER LLP | 50 MILK STREET, 21 st FLOOR, BOSTON, MA 02109 | 617.621.6500

EPA & DEP
November 27, 2023 
Reopener: If at any time after June 2001, the EPA and/or the MADEP is not
satisfied that (1) member communities are reporting all SSOs in accordance with
314 CMR 12.03(8) and/or (2) member communities are adopting and implementing
effective SSO plans, then this permit may be reopened, utilizing permit
modification procedures, to add requirements regarding MWRA regulation of the
member communities and/or to add the member communities as co-permittees
directly regulated under this permit. 
EPA and DEP do not suggest that such enforcement is now necessary or required and cites no
source of legal authority to support the imposition of co-permittee status on every community
within the entire MWRA region. In fact, over the past twenty years, the MWRA, through its
administration and operation of Deer Island, has made significant strides in pollutant control in
the Massachusetts Bay area without imposing a co-permittee structure that may be sensible for
smaller regional wastewater treatment collaboratives. The significant environmental
improvements are reflected in the EPA’s and DEP’s updated effluent parameters and
requirements under the Draft permit, including at least three environmental requirements that
have been fully met. 1 
Further, as the Advisory Board explains, DEP has an obligation to provide a “summary of the
basis for the draft permit conditions including references to applicable statutory or regulatory
provisions” in its fact sheets but has provided none for including these Co-Permittees in the State
Permit. 314 CMR 2.05(3)(c). For Lexington to have an adequate opportunity to comment on the
state permit, it is critical that DEP explain its reasons for this major action and open a new
comment period as well. 
Treating communities like Lexington as co-permittees also imposes unknown costs to comply
with the Draft Permit. For instance, the Draft Permit purports to impose at least eight more
stringent effluent parameters and at least one additional ambient monitoring requirement.
However, the costs of such compliance are not addressed. For Lexington to accurately anticipate
and plan for implementation of these new requirements, EPA and DEP should provide estimates
of the cost of compliance, or, at a minimum, specific methods of compliance that would be
sufficient under the final permit. 
Towns like Lexington must have this information well in advance of any requirements being put
in place to incorporate costs into their budgets and to seek approvals from Town Meetings
(which occur no more than once or twice a year) to finance those costs. And, of course, such
costs must fit in with towns’ other existing obligations to provide for education, public safety,
road and infrastructure maintenance and other municipal services, all while maintaining tax rates
consistent with limits imposed by state law. A sudden shift of a town’s role from a recipient of
MWRA services and MWRA member community, to a co-permittee, with all the legal and
financial responsibilities that come with that role, is no small task. That task, of course, is made 
According to the EPA’s and DEP’s presentation regarding the Draft Permit, Deer Island has completed or
rendered unnecessary the following measures: plume tracking; food web modeling; and the Outfall Monitoring
Science Advisory Panel. 
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EPA & DEP
November 27, 2023 
even more difficult by the additional permit requirements that the Draft Permit imposes on the 
MWRA itself, as more fully detailed in the Advisory Board’s letter.
Accordingly, Lexington respectfully requests that EPA and DEP accept all of the Advisory
Board’s comments regarding the Draft Permit, including, in particular, by removing MWRA
member communities’ status as co-permittees. 
Thank you.
Sincerely,
/s/Mina S. Makarious
Mina Makarious 
Town Counsel, Town of Lexington 
cc: Jim Malloy, Town Manager, Town of Lexington 
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