November 28, 2023 - City of Medford

U.S. Environmental Protection Agency · from the EPA · 7 pages · 1.7 MB
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DEPARTMENT OF PUBLIC WORKS 
Telephone City Hall - Room 304 (781) 393-2417 
TIMOTHY J. MC GIVERN, PE 85 George P. Hassett Drive FAX: (781) 393-2422
TDD: (781) 393-2516 COMMISSIONER Medford, Massachusetts 02155 
[VIA EMAIL] 
November 28, 2023 
Michele Barden Claire Golden 
U.S. Environmental Protection Agency- Region 1 Surface Discharge Program
5 Post Office Square, Suite 100 (06-1) Massachusetts Department of Environmental 
Boston, MA 02109 Protection 
barden.michele@epa.gov 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 City of Medford (Medford) appreciates the opportunity to comment on the draft National Pollutant
Discharge Elimination System (NPDES) Permit No. MA0103284 (the Draft Permit) for the Massachusetts Water
Resources Authority (MWRA) Deer Island Treatment Plant (DITP), which the U.S. Environmental Protection
Agency - Region 1 (EPA or the Region) noticed for comment on May 31, 2023. 1 As one of the entities subject to
the terms of the Draft Permit once they are finalized, Medford writes to express its support for the comments
submitted by the Massachusetts Water Resources Authority Advisory Board (Advisory Board), which are
incorporated by reference as if set forth herein, and also to write separately to articulate and highlight issues of
particular concern to our community. 
As an initial matter, Medford has substantial concerns about the Draft Permit's imposition of a novel
requirement to develop and implement a major storm and flood event plans for its sewer system. This
requirement will impose significant financial and resource burdens on communities like Medford. The extent of
these burdens is unknown because neither EPA nor MassDEP has conducted any cost-benefit analysis of this
new requirement. Medford also has significant concerns about the Draft Permit's directive to complete and
begin implementing a plan within twelve months of the effective date of the final permit. Our community is also
concerned that the mandate to modify its plan whenever new data are generated or discovered threatens to
cast aside local planning priorities in favor of a federally mandated, perpetual planning cycle. 
Medford has other significant concerns with the Draft Permit discussed in detail below. In particular, the Draft
Permit and State Permit inappropriately regulate communities like Medford as co-permittees and have failed to
define their obligations with adequate clarity. As the Advisory Board has commented, unless EPA and MassDEP 
1 On May 31, 2023, the Massachusetts Department of Environmental Protection (MassDEP) also issued a draft 2023 Draft
Massachusetts Permit to Discharge Pollutants to Surface Waters for DlTP (the State Permit) that incorporates by reference
Parts I.A-Kand Part II of the Draft Permit. This letter similarly comments on the State Permit.

clarify the communities' and MWRA's responsibilities, the DITP's permit could upset the longstanding and
successful relationship among M WRA and the communities. 
I. Major Storm and Flood Events Planning Requirements 
Part I.E.2.{e)(2) of t he Draft Permit (the Major Events Planning Provisions) would impose on Medford and other
towns novel and onerous long-term obligations develop and implement plans to address sewer systems climate
change resiliency. These plans, which the Draft Permit requires to be updated every five years, must include (1)
an asset vulnerability evaluation; (2) a systematic vulnerability evaluation, and (3) a mitigation measures
alt ernatives analysis, and they must take into consideration future conditions, "specifically the midterm (i.e., 20 - 
30 years) and long-term (i.e., 80-100 years) and, in the case ofsea level change, the plan must consider sea level
change." Draft Permit Part I.E.2.{e)(2). 
This requirement could strain Medford's resources beyond their breaking point and disrupt its broader capital
planning process. The Draft Permit also gives Medford insufficient t ime to complete its plan. Worse yet, EPA
lacks the authority t o impose this new planning and project development obligation in DITP's NPDES permit, and
both EPA and MassDEP have failed entirely to justify this new set of obligations. 
A. EPA Failed to Evaluate the Costs that Medford and other Communities Will Bear. 
Complying w ith t he Major Events Planning Provisions will impose substant ial costs on M edford. The
investments to undertake this work, including the up-front vulnerability and mitigation alternatives analysis and
t he significant implementation and ongoing re-evaluation requirements, will likely require thousands of hours of
personnel time and the engagement of outside consultants. These costs could pale in comparison to the
potential capital costs that Medford may incur to implement mitigation measures that could even require
relocating existing facilities or building new ones. 
The associated financial burdens on communities like Medford are unknown but certain to be substantial.
Medford will need to assess whether it must hire more staff or engage consultants to comply with the Major
Events Planning Provisions. Based on its planning efforts, Medford will then have to modify its capital plans and
budget for resiliency projects. M edford is already challenged to meet existing regulatory compliance costs since
new compliance obligations ra rely come with new revenue. These additional costs will ultimately impact other
parts of Medford's budget, resulting in lower spending on other critical infrastructure or other community
needs. 
EPA and MassDEP must evaluate these costs before finalizing the Major Events Planning Provisions. At the very 
minimum, before issuing a final permit, EPA or MassDEP should provide Medford and t he public more generally
with a formal cost-benefit assessment that informs all interested parties of the cost burdens of implementing
these novel and significant planning and implementation requirements. 
B. The Major Events Planning Provisions Do Not Provide Sufficient Time for Compliance. 
The Major Events Planning Provisions provide Medford inadequate t ime to develop a plan that must
accomplish the following: (1) analyze sewer system-relat ed assets and assess vulnerabilities, (2) conduct a
systemic vulnerability evaluation of each individual system and develop an alternatives analysis, and (3) begin
implementing mitigation measures. Draft Permit Part I.E.2.{e){2). The Draft Permit affords Medford and its peer
communities only 12 months to accomplish these tasks, an amount of time that is obviously insufficient t o (a)
retain the necessary staff or consultants and (b) complete the tasks required by the Draft Permit. To meet this
aggressive schedule, Medford would need to redirect resources away from other important regulatory 
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compliance tasks and infrastructure improvement projects, and simultaneously find additional revenue to
support the compliance for the long-term. 
If EPA and MassDEP insist on including the Major Events Planning Provisions, the agencies must provide
Medford and other communities with a reasonable deadline to complete this major undertaking. Any final
permit should allow the communities at least thirty-six months to develop and begin implementing major storm
and flood events plans. 
C. The Agencies Should Explore Whether Existing Programs Achieve the Objectives of the Major
Events Planning Provisions. 
Before requiring Medford to expend the significant resources necessary to comply with the onerous Major
Events Planning Provisions, the agencies should assess the extent to which existing efforts or programs address
or could be adapted to address the interests EPA seeks to protect through the Major Events Planning Provisions.
For example, wastewater utilities in Massachusetts regularly seek funding from the Commonwealth's Clean
Water State Revolving Fund (CWSRF), and this program already requires applicants to comply with planning and
asset management requirements to receive funding. The agencies may find that the CWSRF is a better tool to
address long-term planning obligations than an NOPES permit that is limited to governing specific discharges
over a five-year term. 
Medford also takes part in long term planning for climate vulnerability and adaptation. These efforts would 
overlap with planning for Major Events under this permit and would be duplicative and wasteful. The Mystic 
River Watershed community also provides regional planning for major events through the Mystic River 
Watershed Association and the Massachusetts Area Planning Council. 
D. EPA and MassDEP Failed to Justify These Planning Requirements. 
In addition to the foregoing issues, Medford is concerned that it has not had an adequate opportunity to
comment on the Major Events Planning Provisions because EPA and MassDEP have failed to show their work.
Both agencies' fact sheets must address "the significant factual, legal, methodological and policy questions
considered in preparing the draft permit." 40 C.F.R. § 124.8(a); 314 CMR 2.05(3). For a set of programmatic
requirements as important and sweeping as the Major Events Planning Provisions, one would expect substantial
discussions of the various "factual, legal, methodological and policy questions" each agency considered. 
EPA, however, justified the Major Events Planning Provisions by simply declaring them "necessary to ensure 
proper operation and maintenance" of wastewater treatment infrastructure.2 Fact Sheet at 102-03. This 
explanation fails short of what EPA's regulations require, but it at least provides some indication of EPA's views. 
MassDEP, by contrast, failed entirely to discuss the Major Events Planning Provisions in its Supplemental Fact 
Sheet. If Medford and the public are to have a meaningful opportunity to comment on the Draft Permit, the 
agencies must better explain the Major Events Planning provisions and allow for additional public comment. 
Medford suspects that EPA may have failed to justify the Major Events Planning Provisions because it lacks
authority to impose them under the Clean Water Act (CWA). The statute limits EPA's authority under the NPDES
program to regulating discharges, not the wider facility (or facilities) that discharge. See, e.g., Natural Resources
Defense Council v. EPA, 859 F.2d 156, 170 (D.C.Cir.1988) ("[T]he [Clean Water Act] does not empower the agency
to regulate point sources themselves; rather, EPA's jurisdiction under the operative statute is limited to 
2 This explanation appears inconsistent with what the Major Events Planning Provisions require. They do far more than 
ensuring "proper operation and maintenance" by requiring Medford and other cities and towns to consider-and possibly 
pursue-relocating facilities or building entirely new ones. Draft Permit Part I.E.2.e.{2)i.(c)(ii), (iv). 
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regulating the discharge ofpollutants."). The Major Events Planning Provisions, however, reach far beyond
regulating discharges by potentially regulating the location of permittees' facilities or even requiring the
construction of additional infrastructure. Because the Major Events Planning Provisions exceed EPA's jurisdiction
under the CWA, they should be removed from any final permit. 
II. The Draft Permit lmpermissibly Includes Sanitary Sewer Communities As Co-permittees. 
As the MWRA Advisory Board has emphasized in its comments, for the first time, EPA and MassDEP are
attempting to regulate Medford and thirty-eight other sanitary sewer communities under DITP's permit. This
radical change to these communities' regulatory obligations exceeds both agencies' respective authorities and
threatens to disrupt the longstanding relationships between MWRA and the communities it serves. The agencies
have also sought to impose this new regime without Medford's consent by unlawfully waiving their permit
application requirements. 
Worse yet, MassDEP has provided no explanation at all for its decision to regulate the Co-permittees under the 
State Permit. MassDEP has an obligation to provide a 11 
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 in 
the Supplemental Fact Sheet for including these Co-Permittees in the State Permit. 314 CMR 2.05(3)(c). For 
Medford to have an adequate opportunity to comment on the State Permit, MassDEP should explain its reasons 
and open a new comment period. 
A. Neither EPA nor MassDEP Has Jurisdiction to Regulate Communities Like Medford. 
1. The Federal Draft Permit 
The Draft Permit's inclusion of Medford as Co-permittee exceeds the EPA's authority under the NPDES program. 
Under the CWA, EPA may only regulate 11 
the discharge of[a] pollutant." 33 U.S.C. § 1311(a). A regulated 
discharge requires an 11 
addition of any pollutant to navigable waters from [a] point source ...." 33 U.S.C. §
1362(12)(A); 40 C.F.R. § 122.2. Unless its sanitary sewer system adds a pollutant to navigable waters, Medford is 
"neither statutorily obligated to comply with EPA regulations for point source discharges, nor are they statutorily
obligated to seek or obtain an NPDES permit." Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 504 (2d Cir. 
2005); Nat'/ Pork Producers Council v. EPA, 635 F.2d 738, 751 (5th Cir. 2011) ( 11 
There must be an actual discharge
into navigable waters to trigger the CWA's requirements and the EPA's authority."). 
Medford's sanitary sewer system adds no pollutants to navigable waters. As EPA concedes in the Fact Sheet, it 
only adds pollutants to MWRA's treatment works. Fact Sheet 20 ( 11 
The Massachusetts municipalities in Appendix
A own and operate wastewater collection systems that discharge flows to the DITP"). The only addition of
pollutants to navigable waters occurs downstream from Medford's sewers, when DITP discharges treated
effluent from Outfall T01. 3 
EPA rules reinforce that the communities do not have discharges that trigger the Region's CWA authority. The 
regulatory definition of a 11 discharge of a pollutant" explains that the term encompasses releases "through pipes,
sewers, or other conveyances owned by a State, municipality, or other person which do not lead to a treatment
works ...." This language would only be necessary if the obverse is true: flows conveyed through municipally
owned sewers that do lead to a treatment works are not discharges. 
3 The Region's assertion that a sewer system's lack of proximity to the "the ultimate discharge point is not material to the 
question of whether it 'discharges"' is inconsistent with the Supreme Court's interpretation of the Act. Fact Sheet, 
Appendix D at 13. In County ofMaui v. Hawaii Wildlife Fund, the Court explained that " [t]ime and distance traveled are 
obviously important" to determining whether a regulated discharge has occurred. 140 S. Ct. 1462, 1476 (2020). 
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2. The State Permit 
For the reasons set forth above, MassDEP regulation of Medford and the other Co-permittees in t he State
Permit is inconsistent with the regulations governing Surface Water Discharge Permits. The Surface Water
Discharge Permit regulations, like the CWA, generally impose the requirement to obtain a permit on persons
w ho "discharge pollutants to surface waters ...." 314 CMR 3.03(1). And much like the federal program, the
regulations define a "discharge" as an "addition ofany pollutant to waters of the Commonwealth," and explain
that a discharge includes "discharges through ... sewers, or other conveyances owned by a ... municipality ...
which do not lead to a POTW." 314 CMR 3.02. 
The sanitary systems' conveyance of flows to DITP involves no addition of pollutants to any waters of the
Commonwealth. They add flows only to the downstream POTW, a circumstance that the regulations make clear
is not a discharge that requires a permit. 
8. Communities like Medford are not part of the Deer Island Publicly-Owned Treatment Works. 
1. The Federal Draft Permit 
EPA cannot cure its lack ofjurisdiction by lumping Medford and other sanitary sewer communities in w ith the
larger publicly-owned treatment works (POTW) that includes DITP authorized under the Draft Permit. 4 EPA's
regulations define a POTW to be " a treatment works ... which is owned by a State or municipality" - expressed
only in the singular. 40 C.F.R. § 403.3(q); see also id. (Referring to "the municipality ... which has jurisdiction over
Indirect Discharges to and discharges from such a treatment works." . The definition's use of the singular means
that a POTW can only be owned by a single municipal entity, such that Medford's sewer system cannot be part
of same POTW as DITP. 
EPA's regulatory definition of a "discharge" confirms t hat the Region has improperly expanded the definition of
POTW to span multiple communities' sewer systems. That definition covers "discharges through pipes, sewers,
or other conveyances owned by ... a municipality ... which do not lead to a treatment works." 40 C.F.R. § 122.2.
If a satellite collection system could be part of a POTW, t here would never be circumstance where a municipally
owned sewer could "lead to a treatment works." Instead, this provision would refer to municipally owned
sewers " which are not part of a treatment works." The Region' s attempt to make the Co-Permittees part of the
same POTW as DITP contradicts and cannot be reconciled with its own regulations. 
2. The State Permit 
MassDEP similarly cannot deem Medford's sewer system part of the same POTW as DITP under its permitting 
regulations. Like their federa l counterpart, the Surface Water Discharge Permit regulations define a POTW by 
reference to a single public entity rather than several. See 314 CMR 3.02 ("any device or system used in the
treatment ... ofmunicipal sewage ... which is owned by a public entity. " ). Having chosen to define a POTW by 
reference to a single owner, MassDEP cannot include satellite systems owned by thirty-nine communities in the 
same POTW as DITP. 
C. Medford Has Not Submitted An Application To EPA or MassDEP, and Neither Agency Has
Authority To Waive The Requirement To Do So. 
Medford did not submit a permit application to either EPA or MassDEP. Even if the agencies could regulate the
Co-permittees in DITP's permit, issuance of a permit to a community that never submitted a permit application 
4 See Fact Sheet, App'x D at 10 (EPA may regulate satellite communities because they are part of "facilities subject to the
NPDES program"); id. (" NPDES regulations similarly identify the 'POTW' as the entity subject to regulation."). 
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would violate their respective permitting regulations. EPA's rules specify that "[a]ny person who discharges ...
must submit a complete application .... " 40 C.F.R. § 122.21(a)(1). The Region then "shall not issue a permit
before receiving a complete application for a permit ...." Without a permit application from Medford, EPA
cannot issue a permit imposing conditions on Medford. 
EPA cannot avoid this problem by waiving application requirements. See Fact Sheet 12, 21. EPA's March 8, 2023
letter to MWRA claimed that 40 C.F.R. § 121.210) authorized the Region to waive permit application
requirements in their entirety. The Region's waiver authority under this provision, however, extends only "to
any requirement under this paragraph [i.e., the POTW-specific requirements in§ 122.21(j)}." 40 C.F.R.
§ 122.210). Thus, EPA only could have waived discrete information requirements for treatment works, not the
fundamental requirement that a regulated entity submit a permit application. Accord 64 Fed. Reg. 42434, 42440
(Aug. 4, 1999) ("EPA proposed the introductory paragraph of§ 122.210} to allow the Director to waive any
requirement in paragraph (j)"). The Region violated its own regulations by attempting to waive Medford's
obligation to apply. 
MassDEP similarly violated its regulations by seeking to regulate Medford in the State Permit without having
received a permit application from Medford. The Surface Water Discharge Permit rules specify that "{a]ny
person required to obtain a permit ... shall complete and submit the appropriate application form(s)." 314 CMR
3.10(1); see also 314 CMR 2.03(1) ("Any person required to obtain an individual permit ... shall apply to the
Department."). MassDEP "shall not issue a permit before receiving a complete application ...." 314 CMR 3.10(4);
see also 314 CMR 3.02(2) "The Department shall not issue an individual permit ... before receiving a complete
application."). Nothing in MassDEP's regulations offers the department authority to waive permit application
requirements. This framework dictates that MassDEP cannot issue a permit that regulates Medford because
Medford has not applied for a Surface Water Discharge Permit. 
Ill. The Draft Permit Fails to Define w ith Suffic. ient Clarity the Relative Responsibilities of MWRA, CSO-
Responsible Co-Permittees and Co-Permittees. 
Even if EPA and MassDEP could lawfully structure DITP's permit to include Medford and other communities, 
neither the Draft Permit nor the State Permit define these parties' obligations with clarity sufficient to ensure
that they are not held liable for conduct or events over which they have no control. 
The cover page and Part I.E.2 must be revised to provide the communities and MWRA with absolute clarity that
the communities are not responsible for MWRA's noncompliance and vice versa. Any final permit issued by EPA
and MassDEP must make clear that the communities cannot be held liable for violations of permit requirements
applicable to DITP; the Draft Permit and State Permit fail to do this. Language in Part C, Part D, and Part E must
also be clarified further to remove any ambiguity regarding the several liability of MWRA, the CSO-responsible
Co-permittees, and the Co-permittees. 
It is particularly critical that EPA and MassDEP clearly delineate these responsibilities to avoid disrupting the
longstanding relationship between MWRA and the communities, and among the communities themselves. Each
community and MWRA have their own responsibilities with respect to wastewater treatment, and collection
system management and compliance. 5 Under its organic statute, MWRA must be accountable to the
communities, rather than a manager or regulator of the satellite sewer systems it serves. An NPDES permit or
Surface Water Discharge Permit that could make the communities liable for MWRA's conduct-or vice versa - 
5 See Acts of 1984 ch. 372, § 26(d), 1984 Mass. Acts 809 (each local body served by MWRA has "the charge and control of 
the respective water, waterworks and sewer works owned and used by said local body and not in the ownership, 
possession and control of [MWRA]."). 
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could threaten that relationship. Accordingly, Medford supports the MWRA Advisory Board's proposed revisions
to the Draft Permit's language that the Board submitted with its comments. 
IV. Conclusion 
Medford appreciates the opportunity to comment on the Draft Permit and State Permit. Please feel free to 
contact Timothy McGivern, Commissioner of Public Works, if you have any questions or would like to arrange a 
meeting to discuss the resolut ion of the issues raised above. 
~~ - Timothy J. McGivern, PE
Commissioner of Public Works 
City of Medford, Massachusetts 
CC: Breanna Lungo-Koehn, Mayor
Owen Wartella, City Engineer, Engineering Division
D~in-Stoneking, Water and Sewer Division 
MWRA Advisory Board 
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