RESPONSE TO PUBLIC COMMENTS Maritime Academy (“MMA”) National Pollutant Discharge Elimination System (NPDES) Permit No. MA0024368

The U.S. Environmental Protection Agency (EPA) and the Massachusetts Department of Environmental Protection (MassDEP) are issuing a final National Pollutant Discharge Elimination System (NPDES) permit for the Massachusetts Maritime Academy Wastewater Treatment Plant, in Buzzards , Massachusetts. The Final Permit authorizes MMA to discharge wastewater to the Canal, in accordance with the requirements of the Federal Clean Water Act (CWA), 33 U.S.C. §§ 1251 et. seq., and the Massachusetts Clean Waters Act, M.G.L. Ch. 21, §26-53.

The Draft Permit public comment period began on August 27, 2010, and ended on September 25, 2010. Comments were received from Paul O’Keefe, Director of Facilities, Massachusetts Maritime Academy, Korrin N. Petersen, Esq., Vice President of Advocacy, Coalition for Buzzards Bay ("The Coalition"), and Jack P. Schwartz, Ph.D, Marine Fisheries Station, Division of Massachusetts Marine Fisheries (“Marine Fisheries”), in letters dated: September 20, 2010, September 24, 2010, and August 31, 2010, respectively.

Summary of Changes from Draft Permit

1) Fecal coliform limits of 14 colonies/100ml (monthly geometric mean) and 43 MPN/100 ml (maximum daily) have been included. These limits were included in the previous (2001) permit. See response No. 2.

2) The language establishing conditions under which the permittee may seek a reduction in whole effluent toxicity testing has been removed. See response No. 3.

3) The “report” requirement for total copper on Page 3 of the permit has been replaced with a 0.5 mg/l limit. See response No. 9.

4) The last sentence in footnote 3, on Page 4 of the draft permits has been removed.

5) Footnote 6 has been changed to include the following. The fecal coliform limits are EPA permit requirements only. The State Surface Water Discharge Permit (issued jointly with the EPA permit) does not include fecal coliform limits. See “Section 401 Certification”

MMA Response to Comments, Page 1 of 9 6) Under Part I.A1 table on Page 2 the WET limit has been corrected to read

LC50 ≥ 50%.

7) In Permit Attachment B, the second item for average annual flow has been corrected to read Part I.A.1.f.

Comments (1-4) from MMA

Comment No. 1: Fact sheet page 2, Section V. A. Process Description: Correct the description to include three lift stations for the MMA campus: Pier, Library, and Influent Pump stations.

Response No. 1: The fact sheet is developed to support the Draft Permit and is not typically amended in response to public comment because it is not issued as part of the Final Permit decision. The comments submitted on the fact sheet are part of the administrative record and serve to correct the administrative record for the permit.

Comment No. 2: Fact sheet page 6, Conventional Pollutants, Fecal Coliform: The current permit has a fecal coliform limit of 14 colonies/100ml. To ensure that anti-backsliding provisions are not violated, the draft permit should repeat this limit. NOTE: It appears the fact sheet is basing fecal coliform limits on the SB designation for the .

Response No. 2: The June 13, 2000 Fact Sheet for the February 20, 2001 permit reissuance states:

Due to the close proximity of the shellfish beds to the discharge, the draft permit reflects reduced limits for fecal coliform bacteria, equivalent to that required for Class SA waters. …The discharge from the upgraded facility will then be required to meet the specified more restrictive requirements for fecal coliform of 43 MPN/100 ml maximum daily.

Section 402(o) of the CWA generally provides that the effluent limitations of a renewed, reissued, or modified permit must be at least as stringent as the comparable effluent limitations in the previous permit. EPA has also promulgated anti-backsliding regulations which are found at 40 CFR. § 122.44(l). Unless applicable anti-backsliding requirements are met, the limits and conditions in the reissued permit must be at least as stringent as those in the previous permit.

MMA Response to Comments, Page 2 of 9

EPA agrees that the fecal coliform limits of 14 colonies/100ml (monthly geometric mean) and 43 MPN/100 ml (maximum daily), should be carried forward from the 2001 permit based on anti-backsliding requirements and has included these limits in the Final Permit.

EPA notes that the fecal coliform criteria for SA shellfishing waters in the most current state water quality standards (approved by EPA on September 19, 2007) are more stringent than those in the standards in effect at the time the 2001 permit was issued (the 10 percent exceedance value has been reduced to 28 colonies/100 ml).

EPA does not believe that the fecal coliform limits need to be made more stringent than in the 2001 permit to protect shellfishing in adjacent SA waters.

Comment No. 3: Fact sheet pages 9-10, Whole Effluent Toxicity (WET): MMA currently performs annual WET testing and has been in compliance for the previous four years. MMA is requesting that EPA review the previous four years of data to verify compliance with WET testing standards and reduce the testing and reporting requirements to a biennial (every two years) monitoring requirement.

Response No. 3: The language found on Page 10 of the Fact Sheet is standard language for permittees required to conduct WET tests. The language allowing the reduction of WET testing requirements should not have been included in the Fact Sheet or in the Draft Permit because the WET testing frequency in the Draft Permit was already at the minimum frequency allowed under the Clean Water Act. Specifically, 40 CFR § 122.44(i)(2) states that …requirements to report monitoring results shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year.

Accordingly, the WET testing requirements in the permit have not been changed, and the language establishing conditions under which the permittee may seek a reduction in testing has been removed.

Comment No. 4: Fact sheet page 13, Sludge Conditions: MMA uses a licensed sanitary disposal company to transport biosolids (sludge) from the wastewater treatment plant to the local, licensed publicly owned treatment works. MMA requests exemption from the reporting requirement under section 8 of the draft permit since sludge is not land disposed, disposed in a surface unit, nor incinerated.

MMA Response to Comments, Page 3 of 9 Response No. 4: As long as MMA engages a contractor or contractors for sludge preparation and ultimate use or disposal, the annual report need contain only the name and address of the contractor responsible for sludge preparation, use or disposal, the quantity of sludge from the POTW that is transferred to the sludge contractor, and the method(s) by which the contractor will prepare and use or dispose of the sewage sludge. If MMA changes its sludge use or disposal practice, then additional sludge requirements may apply. The sludge language in the permit has not been changed.

Comments (5 and 6) from the Coalition

Comment No. 5: MMA WWTP Nitrogen Performance - According to the Fact Sheet, from June 1, 2006 to August 31, 2009, the average total nitrogen concentration for the MMA WWTP discharge was 38.28 mg/l. While the average discharge flow and overall load to Buzzards Bay is relatively low, approximately 8.3lbs/day, this discharge concentration is much greater than the concentrations achieved by other WWTPs throughout the Buzzards Bay watershed. Therefore, The Coalition supports 'Special Condition F' in the Draft Permit requiring the permittee to complete an evaluation of alternative methods of operating the existing wastewater treatment facility to optimize the removal of nitrogen.

The Coalition recognizes that certain features of this waste stream may present treatment challenges. For example, this facility serves a fluctuating student population which creates inconsistent wastewater flow volumes making treatment for nitrogen more difficult, however not impossible. Many of our local communities operating wastewater treatment facilities face similar treatment challenges in that their populations are seasonal.

However, The Coalition is confident that in complying with this special condition, MMA will identify various technologies and strategies which will reduce the nitrogen in their effluent, and emerge as a leader in enhanced treatment of nitrogen in the face of these waste stream challenges. The Coalition looks forward to reviewing this evaluation.

In support of this evaluation, The Coalition and MMA have agreed that MMA shall monitor and report on monthly basis, and for the duration of this permit, the total nitrogen concentration in its effluent, and report such results to The Coalition and EPA. Such monitoring shall be in accordance with Footnote 3, page 4 of the Draft NPDES Permit.

MMA Response to Comments, Page 4 of 9 Response No. 5: We understand that the permittee has already begun working with engineers to maximize the potential nitrogen removal from the existing treatment system. The reports required by the permit will be available to the public (unless in the unlikely event the permittte claims that information in the reports is confidential business information).

Regarding the memorandum of understanding between MMA and the Coalition for Buzzards Bay, the permittee is obviously free to monitor its discharge more frequently than required by the permit (the permit requires quarterly monitoring).

Also, while we understand that the MOU requires the submittal of this additional monitoring data to EPA, we wish to remind MMA that the reporting of this data to EPA and MassDEP is required by Part II.D.4.(2) of the permit and 40 CFR 122.41(l)(4)(ii). 40 CFR 122.41(l)(4)(ii): If the permittee monitors any pollutant more frequently than required by the permit using test procedures approved under 40 CFR part 136 …the results of this monitoring shall be included in the calculation and reporting of the data submitted in the DMR [Discharge Monitoring Report]…

Monitoring results for additional TN monitoring should also be attached to the monthly DMR and submitted to both EPA and MassDEP.

Comment No. 6: Completion of the Butler TMDL - Since 2003, Butler Cove has exhibited poor water quality indicative of nitrogen pollution. In fact, the Fact Sheet cites to The Coalition's water quality monitoring data and finds that the results for total nitrogen, chlorophyll and dissolved oxygen from samples taken in Butler Cove, "show that excess nitrogen is causing (e)utrophic conditions in embayments within Buzzards Bay." Fact Sheet page 8. It is unclear to what extent the discharge from the MMA WWTP is impacting Butler Cove. However, this should be examined during the development of a TMDL for Butler Cove, which should be expedited due to the close location of the NPDES discharge. In Friends o/the Wild Swan, Inc. v. Us. EPA, the Court recognized the importance of completing TMDLs for waterbodies with NPDES point source discharges when it found the state's TMDL submission "appropriate because TMDLs developed in conjunction with the issuance of a point source discharge permit may be submitted for approval when completed even though corresponding watebody is designated as a low priority for TMDL development." Friends o/the Wild Swan, Inc. v. Us. EPA, 130 F. Supp.2d 1184, 1195 (D. Mt. 1999).

MMA Response to Comments, Page 5 of 9 Response No. 6:

The Butler Cove water quality monitoring site is at the outlet from Buttermilk Bay. The following calculations demonstrate that if all the nitrogen discharged by MMA made its way to Butler Cove and Buttermilk Bay, MMA’s nitrogen contribution to Buttermilk Bay would be only be about 5 percent of the total TN load (see calculations below).

However, this 5 percent estimate is likely much higher than the actual contribution, given that the majority of the MMA discharge is flushed into Buzzards Bay or , depending on the direction of the current. It has been estimated that water in the Canal is completely flushed in 1-1/2 tidal cycles (less than 1 day).1

MMA’s Average Total Nitrogen (TN) Concentration and Flow:

Total Kjeldahl Nitrogen 1.67 mg/l Data averaged from Discharge Monitoring Total Nitrate 35.92 mg/l Report Data, received between: Total Nitrite 0.692 mg/l June 1, 2006 and August 31, 2009. Total Nitrogen* 38.28 mg/l * Total nitrogen is the sum of Kjeldahl nitrogen, total nitrate, and total nitrite

The average monthly flow for the MMA Outfall 001 discharge is 0.026 mgd for the period from September 1, 2008 through August 31, 2009.

MMA’s Total Nitrogen (TN) Discharge Load

Discharge Load = (Discharge flow)(Conversion Factor)(Discharge N concentration)

= (26,000 gal/d)(1 g/1000 mg)(1 lb/ 454 g)(3.785 l/gal)(38.238 mg/l)

= 8.3 lbs/day TN

MMA discharge as a % of total nitrogen load to Buttermilk Bay

Plant load/Buttermilk Bay Load

[(Plant TN Load in lbs per day)(365 days per year)]/(2205 lbs/metric ton) x100% (Total Buttermilk Bay N load in metric tons2)

[(8.3)(365)]/2205 = 5.6% 24.3

1 Appendix D, Environmental Impact Statement for Otis WWTPF, Air National Guard, June, 1990 2 24.3 metric tons per year, as found in Managing Anthropogenic Nitrogen Inputs To Coastal Embayments: Technical Basis and Evaluation of a Management Strategy Adopted for Buzzards Bay, J. E. Costa et al, September 24, 1999

MMA Response to Comments, Page 6 of 9 Based on these calculations, we do not believe that the discharge of nitrogen from the MMA facility causes or contributes to exceedances of water quality standards in Butler Cove. However, should a TMDL or other new water quality information demonstrate the need for a nitrogen limit in the permit, this information would be “new information” pursuant to 40 CFR Part 122.62(a)(2), and would be cause to modify the permit.

Comments (7-9) from Marine Fisheries

Comment No. 7: Page 6, Item 6 of the fact sheet talks about an effluent limit of 1.0 mg/l for total residual chlorine at Outfall 001 (if the UV goes down), but I did not see this on the parameter list in the permit on page 2. I did see that TRC is listed as a parameter on page 4 of the permit under footnote 3.

Response No. 7: Total residual chlorine is limited on Page 7 of the permit under Section C, Emergency Disinfection. The use of chlorine is authorized only as a backup to ultraviolet disinfection. The 1.0 mg/l limit and twice per day sampling requirements are fully enforceable. Because TRC is not used to disinfect the final effluent during normal operations, it does not appear on the limits pages (2-3).

Comment No.8: Page 10 of the fact sheet indicates WET testing could be reduced after 4 consecutive tests, and the permit note # 7 on page 5 says after 2 consecutive WET tests.

Response No. 8: Please see the response to Comment No 3.

Comment No.9: For Outfall 002, the swimming pool, the fact sheet on page 12 says the current permit copper limit of 0.5 mg/l as a maximum daily shall be carried forward in this permit, but the copper maximum daily on the parameter list in the permit is "report" on page 3.

Response No. 9:

The Fact Sheet limit of 5.0 mg/l for total copper for the swimming pool effluent is correct and the “report” requirement in the Draft Permit is a typographical error.

The “report” requirement in the permit has been replaced with a 0.5 mg/l limit. Section 401Certification

MMA Response to Comments, Page 7 of 9 Section 401(a)(1) of the CWA requires all NPDES permit applicants to obtain a certification from the appropriate state agency validating the permit's compliance with the pertinent federal and state water pollution control standards. See CWA § 401(a)(1).

The regulatory provisions pertaining to state certification provide that EPA may not issue a permit until a certification is granted or waived by the state in which the discharge originates. 40 CFR. § 124.53(a). The regulations further provide that "when certification is required…no final permit shall be issued…unless the final permit incorporates the requirements specified in the certification under § 124.53(e)." 40 CFR. § 124.55(a). Section 124.53(e) provides that the State certification shall include "any conditions more stringent than those in the draft permit which the State finds necessary to "assure compliance with, among other things, state water quality standards, 40 CFR. § 124.53(e)(2), and shall include "[a] statement of the extent to which each condition of the draft permit can be made less stringent without violating the requirements of State law, including water quality standards," id. § 124.53(e)(3). Under 40 CFR. § 124.55(c), “a State may not condition or deny a certification on the grounds that State law allows a less stringent permit condition.”

EPA’s “duty under CWA section 401 to defer to considerations of State law is intended to prevent EPA from relaxing any requirements, limitations, or conditions imposed by the State law.” In re City of Jacksonville, 4 E.A.D. 150, 157 (EAB 1992); In re City of Moscow, 10 E.A.D. 135, 151 (EAB 2001); accord In re Ina Rd. Water Pollution Control Facility, 2 E.A.D. 99, 100 (CJO 100). However, "when the Region reasonably believes that a state [WQS] requires a more stringent permit limitation than that specified by the state, the Region has an independent duty under section 301(b)(1)(C) of the CWA to include more stringent permit limitations." Moscow, 10 E.A.D. at 151 (emphasis in original); accord In re City of Marlborough, 12 E.A.D. 235, 252 n. 22 (EAB 2005); Jacksonville, 4 E.A.D. at 158; Ina Rd., 2 E.A.D. at 100 (stating that such "duty is independent of State certification under [section] 401"). EPA’s regulations similarly interpret the statute to impose such an independent duty when EPA issues an NPDES permit. 40 CFR. §§ 122.4(a), (d); 122.44(d)(1), (5).

In its certification of the permit, provided pursuant to Section 401(a) of the Clean Water Act, MassDEP stated that “the fecal coliform limits for Class SA shellfishing waters are not required for this discharge under the Massachusetts Surface Water Quality Standards, and will be EPA only limits.”

The previous NPDES permit issued February 20, 2001, included fecal coliform limits consistent with the Massachusetts Surface Water Quality Standards for Class SA shellfishing waters in effect at that time, even though the MMA discharge is to Class SB waters. (See Response No. 2 for an explanation). EPA has retained these fecal coliform limits in this permit reissuance based on anti-backsliding.

MMA Response to Comments, Page 8 of 9 Footnote 6 has been changed to include the following; The fecal coliform limits are EPA permit requirements only. The State Surface Water Discharge Permit (issued jointly with the EPA permit) does not include fecal coliform limits. Section H.4 of the permit now reads; The fecal coliform limits for Class SA shellfishing waters are not required for this discharge under the Massachusetts Surface Water Quality Standards, and will be EPA only limits.

MMA Response to Comments, Page 9 of 9