D~~D~in · Mr. Kimball's August 31,2007 cover letter in support of the issuance of the discharge permit includes statements regarding the site-assignment public hearing. "On March

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..."..." canoe,."" \t': OCT 2; 2007 I'. '.. a., ;~::~;;:p Conservation Trust (CSCT) L;-~ ~

Westborough, MA 01581 ~i~~=:~.c

September 28, 2007

Case AdministratorMassDEP Office of Appeals and Dispute ResolutionOne Wiliter StreetBoston, MA 02108

Request for Adjudicatory Hearing for the Hopkinton BRPWPO6-WI01602 GroundwaterDischarge Permit No. 841-0

Request for a Stay of the Terms and Conditions of the Groundwater Discharge PermitUntil Completion of the Appeal Process.

Please Imd enclosed the documents iIi support of the request by the Cedar Swamp Conservation Trust &the Fruit Street 10 Citizens Group in the matter of the Hopkinton Groundwater Discharge PermitNO. 841-0.

Respectfully,

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Cc with enclosures:

Office of Counsel Martin Suuberg, Director CERODepartment of Environmental Protection Department of Environmental ProtectionOne Wiliter Street 627 Main Street! Boston, MA 02108 Worcester, MA 01608

v"'Muriel Kramer John PikeChairman Board of Selectmen Conservation Law Foundation18 Main Street 62 Summer StreetHopkinton, MA 01748 Boston, MA 02110-1 016

J. T. Gaucher, DirectorDepartment of Public WorksPOBox 20966 Fruit StreetHopkinton, MA 01748

Cedar Swamp Conservation Trust (CSCT) \\'\V\" .csctnlst.org trustees(jj!csctrust.orl! 508-633-0372I

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Case AdministratorMassDEP Office of Appeals and Dispute ResolutionOne Winter StreetBoston" MA 02108

September 28, 2007

Request for Adjudicatory Hearing for the Hopkinton BRPWP06-WIO1602Groundwater Discharge Permit No. 841-0

Request for a Stay of the Terms and Conditions of the Groundwater DischargePermit Until Completion of the Appeal Process.

The Cedar Swamp Conservation Trust and the Fruit Street 10 Citizens Group request anAdjudicatory Hearing for the Hopkinton BRPWP06- WI 0 1602 Groundwater DischargePermit No. 841-0. The Cedar Swamp Conservation Trust (CSCl) and the Fruit Street 10Citizens Group requests a stay of the terms and conditions of the permit.

A reasonable person who has followed or reviewed the process and the applicableregulations leading to the issuance of the discharge permit would conclude that thedecision was premature, that the proper process was not followed, that the review wasincomplete and based on incorrect information" and that the regulations protecting theCommonwealth's resources were largely ignored.

The Cedar Swamp Conservation Trust (CSCT) is a non-profit MassachusettsCorporation. CSCT's mission is to protect the resources of the Cedar Swamp Area ofCritical Environmental Concern (ACEC) and its supporting tributaries. All surfacewaters, aquifers, bordering vegetated wetlands and tributaries of the Cedar Swamp areclassified as Outstanding Resource Waters and are protected in the Commonwealth under314 CMR 4.00. To accomplish CSCT's mission volunteers collect data and do researchon these resources in order to protect the resources and to educate the public on the valueof these resources. Similarly the Fruit Street 10 Citizens Group, some of whomparticipate in the data collection" share in these goals.

The issuance of the discharge permit will damage this mission to protect these resourcesby the degradation of the existing water quality in the Whitehall Brook and the CedarSwamp ACEC and by causing damage to the ecosystems, wildlife and habitat reliantupon these water resources. The degradation of water quality is not permitted under theregulation for issuing a Groundwater Discharge Permit 314 CMR 5.06(1).

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Page 2Fruit Street Discharge Permit Appeal

The Discharge Site

The Town of Hopkin ton acqUired the Fruit Street Property, approximately 257 acres,primarily for its potential water resources to supplement the existing Municipal DrinkingWater Supply System. Creating part of the property's boundary is the Whitehall Brook,an Outstanding Resource Water (ORW) that is a main tributary to the Cedar Swamp Areaof Critical Environmental Concern (ACEC). State and federal regulations protect theWhitehall Brook and the ACEC as ORWs. The State describes the ACEC as an importantwater resource area consisting ofORWs and containing wildlife habitat for listed rarespecies offering a significant opportunity for nature and ecosystem study and recreation.On this 257 acre property the Town has chosen to discharge its wastewater within theriverfront buffer of Whitehall Brook. Other alternative locations for wastewater dischargeaway from Whitehall Brook exist on the Fruit Street property as well as on otheravailable properties in Hopkinton.

The original plans showed the effluent discharge beds, approximately 220 feet from theWhitehall Brook. Estimates by the applicant of the effluent's travel time from thislocation to the brook ranged from one to six months. No data or other information wassupplied to define under what conditions these traveltimes would apply, the applicant'sengineer has simply confirmed the discharge effluent will reach the Whitehall Brook inthis timeframe. The discharge location was then moved into the riverfront areaapproximately 165 feet from the Whitehall Brook. This location is approximately 25%closer to the brook than the 220 feet which supported the one to six month traveltime.The DEP has viewed this location change as not relevant and has not required a newhydrological study to determine an accurate traveltime to the brook from the 165 footdistance. Studies done on the mobility of the pollutants Phosphorous and Nitrate Nitrogensupport the requirement for a much greater dis~ce for effluent discharge from surfacewater under similar conditions as found at the proposed discharge site (high groundwaterand soil type).

The Department's Decision to Issue the Permit was Premature

Robert Kimball of the Department of Environmental Protections issued the subjectdischarge permit on August 31, 2007. Mr. Kimball took this action with the knowledgethat a Wetland Appeal requesting a Superseding Order of Conditions (DEP file # 188-1365 was under review for the site of the wastewater discharge facility. On August30,2007 Mr. Kimball was copied on a Request for Supplemental Information sent to theTown of Hopkinton by Martin Jalonski (copy enclosed) the DEP Analyst reviewing theimpacts to the Outstanding Resource Waters brought forward in the Wetlands Appeal. Inpart, the Jalonski letter confimled that there are ORW stream and wetland resourcesbeing affected by the proposed work, and required that the Applicant remove a priorculvert and stream crossing and restore the wetlands so as to protect the OR W inaccordance with State regulations. The Jalonski letter issued prior to the issuance of thesubject discharge permit includes the requirement that the Town of Hopkinton submitproject revisions as follows:

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.Revisions to any and all site plans submitted in your appliCation to date which are affectedby Alternative 5;

.Revisions to any and all stormwater drajnage calculations, including a revised StormwaterManagement Form as may be neCessary;

The impact from these "project revisions", particularly in the handling of additionalstormwater on the site and the ability to construct a roadway and crossing to gain accessto the site, will create modifications which should be considered prior to issuance of thedischarge permit. The proposed project site is bordered by Outstanding Resource Waters(ORWs) which restrict stormwater discharge and roadway access. Any alteration orincreased discharge of stormwater on site could impact the area of eft1uent discharge.According to State regulations, the Department shall not issue a discharge permit whichwill cause impact to classified waters including ORWs. The issuance of the dischargepermit at this premature time has created confusion in the project's review process.

The Department's Actions Caused the Discharge Permit Review Process to beFlawed

The laws of the Commonwealth (MGL c 21 s 43 (4») and the regulation 314 CMR 2.07require a groundwater discharge permit public hearing be held "on the matter in acommunity within the affected area of the discharge" if requested by the community'sBoard of Selectmen or if the DEP determines a public hearing to be in the public interest.

CSCT requested of Commissioner O'Donnell that a Discharge Hearing be held (emailApril 15 enclosed). The Commissioner in her April 16 entail (enclosed) to CERO stated "Iam inclined to grant this request". However, in this case the decision not to hold a publichearing was determined by the actions of Robert Kimball of the DEP. The DEP and Mr.Kimball had received numerous requests from the public both in direct conversation andin writing. The decision not to hold a discharge hearing by Mr. Kimball wasinappropriate considering the concerns raised by members of the pqblic. Mr. Kimball alsoinfluenced the Town's decision and caused confusion in the process through his wordingof the public notice for the site assignment hearing and when he conducted inappropriatecommunications with the Town of Hopkinton's DPW Director pertaining to the Town'sdecision.

Mr. Kimball's August 31,2007 cover letter in support of the issuance of the dischargepermit includes statements regarding the site-assignment public hearing.

"On March 7, 2007, the Department approved the design plans for the facilityand issued the Town a public notice, which the Town subsequently published onMarch 16, 2007.

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The public notice (copy enclosed) supplied to the Town by Robert Kimball of the DEP.reads in part:

...notice is hereby given that the Department of Environmental Protection willconduct a public hearing on Thursday April]2, 2007 at ] 0:00 am at MassDEPs CentralRegional Office, 627 Main Street Worcester, .MA to act upon a Groundwater DischargePermit filed by the Town of Hopkinton. "

Neither the above words nor the complete public notice inform the public that the April12 hearing was for a site-assi~ent hearing and not for a discharge permit hearing.When the issue was raised Mr. Kimball's position was that the DEP had never held apublic hearing for a ground discharge permit and it was not required under theregulations. If one compares the public notice wording "to act upon a GroundwaterDischarge Permit" and the words ofMGL c 21 s 43 (4) "on the matter in a communitywithin the affected area of the discharge" the word contain the same intent, to conduct areview to issue a discharge permit. One cannot modify history by attempting to alter thebasis for the hearing. Had the hearing been held in Hopkinton as the law requires andwhere all previous public hearings on the planned wastewater treatment plant had beenheld many more residents and interested parties that could not take this amount of timeoff from work could have participated.

Following the close of the April 12 hearing, conducted by Mr. Kimball, Mr. Kimball wasrequested by CSCT to hold a discharge permit hearing in Hopkinton. At the HopkintonBoard of Selectmen's meeting held on April 24 the Town's DPW Director J. T Gaucherand the DPW Advisory Committee's Chainnan Eric Sonnett spoke regarding the townrequesting a discharge permit hearing. When speaking directly on the subject and againwhen their statements were questioned they confirmed participating in a discussion withRobert Kimball about the possible hearing request (DVD of the Selectmen's April 24meeting was previously supplied to Commissioner O'Donnell and Director Suuberg).

Eric Sonnett: "The DPW based on the recommendation of Earth Tech and therecommendation of Bob Kimball of DEP recommend that we not conductthis hearing"

Nancy Peters, Board of Health Chairman:

"Did I understand you correctly that you said Mr. Kimballfrom DEPrecommended that there not be a Hearing?"

Eric Sonnett: "That's correct"

Peters: "Did he do that in a written statement or a phone call? "

J T Gaucher: "It was a telephone conversation that I had with him ".

Following the testimony of Mr. Gaucher and Mr. Sonnett the Board of Selectmen voted

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2 -1 against holding a discharge permit hearing. After review of the meeting video CSCTrequested clarification from the DEP of the accuracy of the statements made by Gaucherand Sonnett. CSCT received a written response from DEP's Central Region DirectorMartin Suuberg which included a memo from Robert Kimball (copies enclosed). Thecorrespondence includes a tentative denial summarized in Mr. Kimball final statementfrom his memo, "It was always understood that the ultimate decision on whether torequest a permit hearing was solely the Town's".

Following review of the Board of Selectmen's (BOS) video on May 18 CSCT emailedActing Commissioner O'Donnell. The email which followed delivery of a copy of theBOS meeting video DVD included the following request.

"I do not know what corrective action can take place at this time but Ibelieve a letter to the Hopkinton BOS should clarify whatever statementswere made by Mr. Kimball."

The DEP failed to communicate their knowledge on what was either a misrepresentationof Mr. Kimball's conversation by Mr. Gaucher or was an inappropriat~ action taken byMr. Kimball to the Town of Hopkinton Board of Selectmen. This failure by theDepartment to take corrective action by notifying the Board of Selectmen while havingdirect knowledge that the Board of Selectmen's decision was tainted by inappropriate oruntrue statements central to the discharge permit process has caused the permit reviewprocess to be flawed and incomplete.

The Department Failed to Conduct a Complete Review Prior to the Decision toIssue the Discharge Permit

Mr. Kimball's August 31, 2007 cover letter in support of the issuance of the dischargepermit includes Statements which are not supported by factual data. The DEP has reliedin part upon information supplied by the Town and the project engineering consultantEarth Tech while available data. supports different conclusions.

"Hopkinton has reached its contractual sewer capacity limit with WestboroughTreatment Plant Board; and has an immediate need to implement additionalwastewater disposal solutions to supplement this agreement"

CSCT has reviewed daily records of the wastewater volume from Hopkinton received fortreatment at the Town of West borough wastewater treatment plant. Hopkinton iscontractually allowed to send 400,000 gallon-per-day (gpd) to the Westborough facility.Records for July and August 2007 (copies enclosed) show an average daily volume of243,000 and 248,000 gpd respectively. This two month period was chosen due to the dryweather to determine a true baseline flow with little impact from inflow and infiltration (I& I) or leaks in the system. Based on the actual data Hopkinton has in excess of 100,000gpd of unused capacity available daily at the Westborough facility. The first phase of theproposed Hopkinton Fruit Street wastewater treatment facility is 100,000 gpd or less thanthe current unused capacity. Hopkinton has a serious I & I problem during wet periods,

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which the DEP should require is addressed, but there is no "immediate need" for thispennit or facility as concluded by Robert Kimball of the DEP.

Robert Kimball's August 31 review also concludes that "In processing this application,the Department has carefully considered the proximity of the proposed discharge toWhiteh'atl Brook, designated outstanding resource water. Although groundwaterdischarges are not prohibited, any proposed discharge must be protective enough toensure that it will not impact either groundwater or surface water quality standards." Infact groundwater discharges which will impact OR W s are prohibited in 314 CMR5.06(1). The "proximity of the proposed discharge" at approximately 165 feet from theWhitehall Brook also indicates this should actually be reviewed as a surface waterdischarge. The disposal site having high groundwater allows for rapid movement of thepollutant carrying effluent to reach the protected surface waters of Whitehall Brook. Insupport of this conclusion that the discharge should be reviewed as a surface waterdischarge some courts have found NPDES permits to be required when discharges togroundwater result in migration of pollutants to hydrologically connected surface waters.

The letter also indicates the review was completed on March 7, 2007 but relies upon the"mitigation measures" found in the Section 61 Findings written by the DEP on January24, 2007. The DEP's conclusion regarding the impacts to the Whitehall Brook ("Thepotential impact of the wastewater discharge at the Fruit Street sits to the WhitehallBrook was addressed and evaluated as a result of comments received through the FruitStreet Master Plan and CWMPIFEIR process") is not consistent with the direction in theSecretary's CWMP Phase IV Certificate: "I anticipate that DEP's permitting process willrequire the proponent to address the potential impacts to the Whitehall Brook and theCedar Swamp ACEC from the proposed Fruit Street WWTF's wastewater dischargeduring seasonal low flow conditions". The DEP has failed to act upon this directive,relying solely on the proponents' statements regarding impacts at high flow levels in thebrook that were not supported by actual data. The DEP conducted no review of impactson the water quality of the Whitehall Brook, nor do they appear to have current dataabout the water quality within Whitehall Brook.

The DEP has relied upon a "historical" review process that is flawed. The fact that theWhitehall Brook is an Outstanding Resource Water raises the significance of the surfacewater body and the regulatory enforcement to prevent any potential reduction in the waterquality of the brook. Mr. Kimball has stated that "the Department has not historicallystipulated limits for phosphorous in its groundwater discharge permits" however ingeneral discharge permits have become more restrictive with tighter effluent limits onpermits for both surface and ground discharges. The surface discharge pennits forfacilities discharging to the Assabet River have new phosphorous limits set at O.lmg/l or20% of the proposed Hopkinton permit. The April 13, 2005 (GW 656-1) GroundDischarge Pennit issued to the Town of Acton and signed by Robert Kimball limitsphosphorous to a monthly average of 0.2mg/l, 60% lower than the 0.5mgillimit set forthe Fruit Street site although the nearest surface water body to the Acton discharge site isnot classified as an ORW.

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The summary of the review in the letter relies upon infonnation which was not supportedby ac~ data or studies to conclude that septic systems near Whitehall Brook contributemore than 6lbs of phosphorous loading to the brook daily. Because of this the DEPfurther concludes the wastewater treatment facility will be beneficial to the WhitehallBrook. This conclusion fails on a number of points. First the area of concern containingseptic systems near Whitehall Brook is not part of the Phase I capacity of the facility. ThePhase II proposed area does include these homes but has not been funded, may not befunded and there is no legal obligation for the homeowners to connect to the system ifavailable. Second, testimony by the Chair of the Board of Health and Board of Healthrecords show few septic failures in this area and those septics having problems have beenrepaired or replaced at costs much less than the estimated sewer bettennent fee. Third, theseptic systems in the area are not contributing excessive phosphorous to the WhitehallBrook. Actual scientific data collected on the phosphorous levels in the Whitehall Brookshow extremely low levels (data follows in this document). TheDEP's conclusion has nofactual basis and is not correct. Using the USGS Stream Stats for flow in Whitehall brook

) and the EP A fonnula to calculate the phosphorous load, if 6 lbs/day entered the brookfrom the septics:

Concentration in lng/I = Ibs/dav 6.3 Ibs 2JJQ§MOD (cfs x 0.647) x 8.345 (.3cfs x 0.647) x 8.345 = 1.6197645 = 3.88lng/1

Actual laboratory results from samples collected from the Whitehall Brook, as part of thestudy managed by CSCT and done with a DEP approved Quality Assurance Project Plan(QAPP) for the Upper Sudbury River Watershed Partnership, have averaged over the lastfive months less than 0.04 mg/l- which is 97X lower concentration of phosphorus thanwas conjectured by DEP. This infonnation has previously been supplied to the DEP inwriting, but appears to have been ignored. Also ignored by Mr. Kimball was infonnationin an April 18, 2007 email from Margaret Webber of the DEP.

"OWM took water quality samples of Whitehall brook in 2001. One of these daysof data recorded an instream phosphorous concentration of 0.11 mgll in

Whitehall Brook. Other days had lower levels, ..."

"Earth Tech (page 30 of34 of the WQ Certification) estimated the phosphorousload from the Wood Street area Title 5 residences to be 6.3 pounds ofphosphorous discharged daily to groundwater. "

Had Mr. Kimball or Ms Webber made the simple calculation above based on theinformation in her email the DEP would have determined the infonnation the DEPwasrelying on from the proponent was flawed.

Similarly the DEP has arbitrarily set the limit on Nitrate-Nitrogen (NO3) in the effiuentdischarge to 5.Omg/l. This limit, on this very mobile pollutant, is 20+ times the existingNitrate-Nitrogen levels in the Whitehall brook which have averaged 0.225 mg/l in twomonthly rounds of sampling.

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The conclusions in the August 31 summary that the "discharge will also provide neededrecharge to the local aquifer and indirectly local surface waters" (Whitehall Brook) andthat the "recharge would be beneficial to water quality in Whitehall Brook and to thelocal aquifer" as well as the conclusion in the January 24 Section 61 Findings that theeffiuent discharge "at Fruit Street will recharge the aquifer at the point of stress, which isWhitehall Brook" again have no basis. Data shows the Whitehall Brook upstream anddownstream of the discharge site have seasonal low stream flows. The upstream sectionof the brook will receive no additional flow from the discharge but will in fact sufferadded dewatering from the lack of the area septic system discharges. Studies have shownthat only after ~riods of extreme drought (no precipitation for a minimum of 180 days)the aquifer pulls approximately 3% of the water needed to fulfill well withdrawalrequirements. So even in periods of extreme drought, only a 3% recharge would occur.Under nonnal conditions, no recharge to the aquifer would occur. Studies actuallysupport the conclusion that the phosphorous and nitrate loaded effiuent would flow toWhitehall Brook and the Cedar Swamp ACEC, thereby degrading the protected waterquality and the reliant ecosystems and wildlife in the extensive habitat area, while doingnothing to recharge the local aquifer.

Regulations

314 CMR 5.00: GROUND WATER DISCHARGE PERMIT PROGRAM

314 CMR 5.06: Restrictions on the Issuance of a Permit

The Department shall not issue a permit pursuant to 314 CMR 5.00:

(1) When the discharge will cause or contribute to a condition in contravention ofstandards for classified waters of the Commonwealth, pursuant to 314 CMR 4.00and 6.00;

The Hopkinton Draft Groundwater Discharge Pennit allows effiuent discharge adjacentto the Whitehall Brook which is classified as an Outstanding Resource Water (ORW) ofthe Commonwealth. The water quality ofORWs is protected under 314 CMR 5.06(1), theCommonwealth's Surface Water Quality Standards (SWQS) 314 CMR 4.00,314 CMR6.07(2) and the Clean Water Act. The regulations and the Clean Water Act do notdifferentiate as to where the water quality degradation is coming from when requiring theprotection of existing adjacent, downgradient and downstream surface waters by theprohibition of a discharge. The proposed level of discharge clearly constitutes adegradation of the current water quality within Whitehall Brook.

314 CMR 4.01(3) Authority. The Massachusetts Surface Water Quality Standardsare adopted by the Department pursuant to the provisions of M.G.L. c. 21, § 27.

314 CMR 4.01(4) Purpose. M.G.L. c. 21, §§ 26 through 53 charges the Departmentwith the duty and responsibility to protect the public health and enhance the quality

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Fruit Street Discharge Permit Appeal

and value of the water resources of the Commonwealth. It directs the Department totake all action necessary or appropriate to secure to the Commonwealth the benefitsof the Clean Water Act, 33 V.S.C. §1251 et seq. The objective of 33 V.S.C. §1251 etseq. is the restoration and maintenance of the chemical, physical, and biologicalintegrity of the Nation's waters. To achieve the foregoing requirements theDepartment has adopted the Massachusetts Surface Water Quality Standardswhich designate the most sensitive uses for which the various waters of theCommonwealth shall be enhanced, maintained and protected; which prescribe theminimum water quality criteria required to sustain the designated uses; and whichcontain regulations necessary to achieve the designated uses and maintain existingwater quality including, where appropriate, the prohibition of discharges.

314 CMR 4.03: Application of Standards

314 CMR 4.03(1)(a) Discharges shall be limited or prohibited to protect existinguses and not interfere with the attainment of designated uses in downstream and

adjacent segments.

314 CMR 4.03(3) Hydrologic Conditions. The Department will determine the mostsevere hydrologic condition at which water quality criteria must be applied.

314 CMR 6.07(2) requires that prior to the issuance of a permit the Departmentmust consider natural background conditions, must protect existing adjacent anddowngradient uses and must not interfere with the maintenance and attainment ofbeneficial uses in adjacent and downgradient waters.

The Department has failed to review the impacts to the Water Quality of the WhitehallBrook under varying hydrologic conditions caused by rising groundwater during heavyperiods of precipitation. The Department has failed to reqUire any hydrologic study of theimpact from the relocated discharge site. The Department's failure to meet therequirements as directed by the Secretary of the EOEEA in the Phase IV CWMPCertificate to investigate the impacts to the Whitehall Brook during low-flow is also areqUirement in 314 CMR 4.03(3). These failures by the Department violate therequirement of 314 CMR 4.03(3) to determine the impact from the most severehydrologic conditions and contribute to the Department's failure to protect thedownstream and adjacent waters of the Whitehall Brook and Cedar Swamp ACEC asrequired in 314 CMR 4..03(1)(a) and 314 CMR 6.07(2).

314 CMR 4.04: Antidegradation Provisions(1) Protection of Existing Uses. In all cases existing uses and the level of waterquality necessary to protect the existing uses shall be maintained and protected.

314 CMR 4.04(3) Protection of Outstanding Resource Waters. Certain waters aredesignated for protection under this provision in 314 CMR 4.06. These watersinclude Class A Public Water Supplies (314 CMR 4.06(1)(d)I.) and their tributaries,certain wetlands as specified in 314 CMR 4.06(2) and other waters as determined by

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Fruit Street Discharge Permit Appeal

the Department based on their outstanding socio-economic, recreational, ecologicaland/or aesthetic values. The quality of these waters shall be protected andmaintained.

Numerous studies on the mobility of phosphorous in effluent from ground dischargefacilities such as the USGS publication by John Colman (Scientific Investigations Report2004-5299) discuss the limited binding capacity of phosphorous to soils allowing thephosphorous to migrate to surface water bodies impacting the water quality of thereceiving waters. High groundwater levels with porous soils such as those found at theproposed discharge site enhance this transportability. Nitrate Nitrogen has even lessbinding capability than phosphorous and "is highly mobile in soils, often moving withwater in the soil profile" as described in the University of Florida's GroundwaterNitrogen Study (Cir 1494). EP A studies on Nitrate-Nitrogen also have concluded thatecosystems suffer stresses from chronic exposure to even low levels of Nitrate-Nitrogen.

EPA/600/R-05/087October 2005

Ecosystem Stress from Chronic Exposure to Low-levels of Nitrate

Our experiments demonstrate that even the relatively small amounts of bioavailablenitrogen that are deposited in precipitation have the capacity to change multiple aspectsof ecosystem nitrogen retention, sequestration, and processing. The changes observedare always deleterious in that they lead to greater concentrations of nitrate-N andthereby make more available for leaching to surface and groundwater. As outputs ofnitrogen to the atmosphere can reasonably be expected to increase in the foreseeabledecades, it is prudent to identify and develop management options now to both restoreecosystems that are already compromised and to buffer affects to ecosystems that areat risk from new nitrogen inputs.

Stephen G. Schmelling, DirectorGround Water and Ecosystems Restoration DivisionNational Risk Management Research Laboratory

The potential water quality impact to Whitehall Brook from the discharge of Phosphorousand Nitrate Nitrogen at the Fruit Street site were a consideration when CSCT developed awater quality monitoring plan for the Cedar Swamp/Upper Sudbury River Watershed.CSCT submitted a Quality Assurance Project Plan to the DEP for review during the2006-2007 winter. The QAPP which includes two sites on the Whitehall Brook (oneupstream and one downstream of the proposed discharge point) in the eight monitoringlocations in the plan was approved by MassDEP during the spring of2007. The studyincludes Phosphorous levels and stream flow data as well as long-tenn temperature datacollection. CSCT's data collection began in May and as listed in the table below showslevels of Phosphorous as well as Nitrate Nitrogen significantly lower than allowed in theproposed pennit. The water quality of the Whitehall Brook will be degraded by theeffluent discharge.

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May June July August SeptemberTP TP TP TP N03 TP NO3

Whitehall Brook upstream <.01 0.01 0.02 0.01 0.20 0.03 0.20

Whitehall Brook downstream 0.03 0.06 0.08 0.02 0.24 0.07 0.25

TP = Total Phosphorous NO3 = Nitrate Nitrogen

All analysis done by Thorstensen Laboratory, Westford Ma, Method EPA 365.2

The Department has failed to protect the Whitehall Brook and Cedar Swamp ACEC fortheir existing uses and to maintain the water resources to the current water quality levelas established using the DEP approved Quality Assurance Project Plan for the UpperSudbury River Watershed. The issuance of the discharge permit will allow degradation tothe water quality of the Whitehall Brook and the Cedar Swamp ACEC from increasedPhosphorous and Nitrate Nitrogen levels in violation of 314 CMR 4.03(1)( a), 314 CMR4.04 (1) & (3), 314 CMR 6.07(2) and 314 CMR 5.06(1).

Summary

As supported by the information throughout this document the DEP has issued the Townof Hopkin ton a Ground Discharge Permit (841-0) without proper review andinvestigation of the impacts to the adjacent and downstream ORWs, in violation ofnumerous applicable regulations. The water quality of these ORWs is currently very goodbut it can also be easily degraded by relaxing its regulatory protection. Representatives ofthe DEP have interfered with or allowed the process to be wrought with inaccuratetestimony leading to the loss of public participation because in Mr. Kimball's words fromhis email to Martin Suuberg, the Director ofCERO, "Opponents' goal is to stop, or atleast delay, town's plans to construct potw at this site." Mr. Kimball's failure tounderstand the environmental concerns, the applicable regulations and to conduct athorough investigation concluded with an incomplete and flawed process. Mr. Kimball'scharacterization of 'Opponents goals" shows a clear bias and a pre-judgment of the factsrelative to a permit application within his jurisdiction, which is inappropriate in any

public permitting process.

If the wastewater ground discharge permit is allowed, statistics show (DEP webpageenclosed) it will join the majority of others in the Commonwealth permitted by the DEPthat are negatively impacting the groundwater and surface waters of the Commonwealth.DEP's records state that in 2006,63.5% of the permitted groundwater discharge sites arein noncompliance with a large portion of those due to effluent violations. The ORWs ofthe Whitehall Brook and downstream Cedar Swamp ACEC are vital Commonwealthresources that must be protected, and should not be allowed to be degraded.

The current location on the Fruit Street property is not an environmentally appropriatesite for a discharge facility. We request the effluent discharge bed location be moved to a

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Page 12Fruit Street Discharge Pemtit Appeal

minimum of 500 feet from the Whitehall Brook and its supporting wetland and tributaryresources if the Fruit Street site is to be used.

A factual review of the high volume I & I problems should be conducted prior toconstruction of any WWTF. If a WWTF is found to be needed after repairs are made tolimit and control the amount of I & I in the sewer system we believe that the ElmwoodPark alternate site, which originally rated superior to the Fruit Street location, should bereconsidered for the wastewater discharge facility. Facts relevant to the Elmwood Parkanalysis and site selection process have been submitted separately to DEP as part of theon-going wetlands appeal. Location of a groundwater discharge at Elmwood Park wouldbe more beneficial to the area's water resources, have a more positive environmentalimpact, be closer to the business needs area, and less costly overall.

Submitted by Cedar Swamp Conservation Trust and the Fruit Street 10 Citizens GroupP. O. Box 996Westborough, MA 01581 ~5 // 508-633-0372 ~ {;~ ;..-

John CraycroPresident CSCT &Representative 10 Citizens Group9 Grindstone CtWestborough, MA 01581508-836-4992

Copies via First Class Mail

Office of CounselDepartment of Environmental ProtectionOne Winter StreetBoSton, MA 02108

Martin Suuberg, Director CERODepartment of Environmental Protection627 Main streetWorcester, MA 01608

Muriel KramerChainnan Board of Selectmen18 Main StreetHopkinton, MA 01748

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J. T. Gaucher, DirectorDepartment of Public WorksPOBox 20966 Fruit StreetHopkinton, MA 01748

John PikeConservation Law Foundation62 Summer StreetBoston, MA 02110-1016

Enclosures:

DEP Documents:Hopkinton Ground Discharge Permit 841-0, August 31, 2007Ground Discharge Pennit Cover Letter, August 31,2007Section 61 Findings, January 24, 2007Site Assignment, August 31, 2007 & Public NoticeNotice for Project Modification, August 30, 2007Email-CSCT to DEP Commissiolier to DEP CERa, re Hearing Request

4/12-4/17,2007Reply to CSCT Discharge Hearing issues, May 30, 2007DEP webpage, Ground Discharge Pennit Statistics

Westborough WWTP July & August 2007, Hopkinton Wastewater Log SheetsCedar Swamp Request to EP A, January 12, 2007EPA response, February 2, 2007

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