November 28, 2023 - Town of Milton

U.S. Environmental Protection Agency · from the EPA · 8 pages · 327 KB
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TOWN ADMINISTRATOR 
NICHOLAS MILANO 
TEL 617-898-4845 
COMMONWEALTH OF MASSACHUSETTS 
TOWN OF MILTON 
OFFICE OF THE SELECT BOARD 
525 CANTON AVENUE, MILTON, MA 02186 
TEL 617-898-4843 
FAX 617-698-6741 
SELECT BOARD 
MICHAEL F. ZULLAS, 
CHAIR 
ERIN G. BRADLEY, 
VICE CHAIR 
ROXANNE MUSTO,
SECRETARY 
RICHARD G. WELLS, JR.,
MEMBER 
BENJAMIN ZOLL 
MEMBER 
November 28, 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 Milton 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, the Town of Milton 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, the Town of Milton 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 the Town of Milton. The extent of these
burdens is unknown because neither EPA nor MassDEP has conducted any cost-benefit
analysis of this new requirement. The Town of Milton also has significant concerns about 
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 DITP (the State
Permit) that incorporates by reference Parts I.A-K and Part II of the Draft Permit. This letter similarly
comments on the State Permit.

the Draft Permit’s directive to complete and begin implementing a plan within twelve
months of the effective date of the final permit. 
The Town of Milton has other significant concerns with the Draft Permit discussed
in detail below. In particular, the Draft Permit and State Permit inappropriately regulate
communities like the Town of Milton as co-permittees and have failed to define their
obligations with adequate clarity. As the Advisory Board has commented, unless EPA
and MassDEP clarify the communities’ and MWRA’s responsibilities, the DITP’s permit
could upset the longstanding and successful relationship among MWRA and the
communities. 
I. Major Storm and Flood Events Planning Requirements 
Part I.E.2.(e)(2) of the Draft Permit (the Major Events Planning Provisions) would
impose on the Town of Milton 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 alternatives 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 of sea level change, the plan must consider sea level change.” Draft
Permit Part I.E.2.(e)(2). 
This requirement could strain the Town of Milton’s resources and disrupt its
broader capital planning process. The Draft Permit also gives the Town of Milton
insufficient time to complete its plan. Worse yet, EPA lacks the authority to 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. 
The Town regularly undertakes assessments of its capital infrastructure and has
completed planning initiatives under the Massachusetts Municipal Vulnerabilities
Program, but these new requirements would be costly and potentially duplicate other
efforts already underway. 
A. EPA Failed to Evaluate the Costs that the Town of Milton and Other
Communities Will Bear. 
Complying with the Major Events Planning Provisions will impose substantial
costs on the Town of Milton. The investments to undertake this work, including the up-
front vulnerability and mitigation alternatives analysis and the significant implementation
and ongoing re-evaluation requirements, will likely require thousands of hours of
personnel time and the engagement of outside consultants. These costs may pale in
comparison to potential capital costs that the Town may incur to implement mitigation
measures. 
The associated financial burdens on communities like the Town of Milton are
unknown but certain to be substantial. Milton 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, Milton will then have to modify its capital plans and budget
for resiliency projects. These additional costs will ultimately impact other parts of the

Town’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 the Town of Milton and the 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 the Town of Milton inadequate
time to develop a plan that must accomplish the following: (1) analyze sewer system-
related 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 the Town of
Milton and its peer communities only 12 months to accomplish these tasks, an amount of
time that is obviously insufficient to (a) retain the necessary staff or consultants and (b)
complete the tasks required by the Draft Permit. 
If EPA and MassDEP insist on including the Major Events Planning Provisions,
the agencies must provide the Town of Milton and other communities 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 the Town of Milton 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 in order
to receive funding. The agencies may find that the CWSRF is a better tool to address
long-term planning obligations than an NDPES permit that is limited to governing specific
discharges over a five-year term. 
D. EPA and MassDEP Failed to Justify These Planning Requirements. 
In addition to the foregoing issues, the Town 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 the Town 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. 
The Town 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 regulating the discharge of pollutants.”). 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 IMPERMISSIBLY INCLUDES SANITARY SEWER
COMMUNITIES AS CO-PERMITTEES. 
As the Advisory Board has emphasized in its comments, for the first time, EPA
and MassDEP are attempting to regulate the Town of Milton 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 the Town of
Milton’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
“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). In order for the Town of Milton 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 the Town of Milton. 
1. The Federal Draft Permit 
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 Milron and other 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).

The Draft Permit’s inclusion of the Town of Milton as Co-permittee exceeds the
EPA’s authority under the NPDES program. Under the CWA, EPA may only regulate
“the discharge of [a] pollutant.” 33 U.S.C. § 1311(a). A regulated discharge requires an
“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, the Town of Milton 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’l Pork Producers Council v. EPA , 635 F.2d 738, 751 (5th Cir. 2011) (“There must be
an actual discharge into navigable waters to trigger the CWA’s requirements and the
EPA’s authority.”). 
The Town of Milton’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 (“The Massachusetts municipalities in Appendix A own and operate
wastewater collection systems that discharge flows to the DITP ” (emphasis added)). The
only addition of pollutants to navigable waters occurs downstream from
[COMMUNITY]’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 “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. 
2. The State Permit 
For the reasons set forth above, MassDEP regulation of the Town of Milton and
the other Co-permittees in the 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 who “discharge
pollutants to surface waters ….” 314 CMR 3.03(1). And much like the federal program,
the regulations define a “discharge” as an “addition of any 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. 
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 of Maui 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).

B. Communities like the Town of Milton are not part of the Deer Island
Publicly-Owned Treatment Works. 
1. The Federal Draft Permit 
EPA cannot cure its lack of jurisdiction by lumping the Town of Milton and other
sanitary sewer communities in with 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) (emphasis added); see also id. (referring to “ the 
municipality … which has jurisdiction over Indirect Discharges to and discharges from
such a treatment works.” (emphasis added). The definition’s use of the singular means
that a POTW can only be owned by a single municipal entity, such that the Town of
Milton’s sewer system cannot be part of same POTW as DITP. 
EPA’s regulatory definition of a “discharge” confirms that 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, there 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 the Town of Milton’s sewer system part of the
same POTW as DITP under its permitting regulations. Like their federal 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 … of municipal sewage … which is owned by a public entity .” (emphasis
added)). 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. The Town of Milton Has Not Submitted An Application To EPA or
MassDEP, and Neither Agency Has Authority To Waive The
Requirement To Do So. 
The Town of Milton 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 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 
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.”).

permit ….” Without a permit application from the Town of Milton, EPA cannot issue a
permit imposing conditions on the Town of Milton. 
EPA cannot avoid this problem by waiving application requirements. See Fact
Sheet 12, 21. EPA’s March 8, 2023 letter to the Town of Milton claimed that 40 C.F.R. §
121.21(j) authorized the Region to waive permit application requirements in their entirety. 
See Attachment X [COMMUNITY NAME’S Waiver Letter]. 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. § 122.21(j).
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 § 122.21(j) to allow the Director to waive any requirement in 
paragraph (j) ” (emphasis added)). The Region violated its own regulations by attempting
to waive the Town of Milton’s obligation to submit an application. 
MassDEP similarly violated its regulations by seeking to regulate the Town of
Milton in the State Permit without having received a permit application from the Town of
Milton. 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 offer the department any authority to
waive permit application requirements. This framework dictates that MassDEP cannot
issue a permit that regulates the Town of Milton because the Town of Milton has not
submitted an application for a Surface Water Discharge Permit.] 
III. The Draft Permit Fails to Define with Sufficient 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 the
Town of Milton 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—could threaten that
relationship. Accordingly, the Town of Milton supports the Advisory Board’ proposed
revisions to the Draft Permit’s language that the Board submitted with its comments. 
IV. Conclusion 
The Town of Milton appreciates the opportunity to comment on the Draft Permit
and State Permit. Please feel free to contact DPW Director Chase Berkeley at 
cberkeley@townofmilton.org if you have any questions or would like to arrange a
meeting to discuss the resolution of the issues raised above. 
Sincerely, 
Nicholas Milano 
Town Administrator 
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]. ”).