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DRAFT
SUMMARY OF APPEALS TO THE EPA ADMINISTRATOR,
FROM NPDES APPEAL NO. 75-1 TO APPEAL NO. 89-20
(DRAFT)
July 10, 1990
U.S. Environmental Protection Agency
Office of Water Enforcement and Permits
Washington, D.C. 20460
CT>
cn
'- ENVIRONMENTAL PROTECTION
HEADQUARTERS LIBRARY
ENVIRONMENTAL PROTECT
WASHINGTON, D.C. 20*00
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DRAFT
INTRODUCTION
This document contains summaries of all Appeals regarding NPDES permits which have
been brought before EPA's Administrator. These proceedings typically are heard and decided by
EPA's Chief Judicial Officer, though some are heard and decided by EPA's Administrator.
After issuance of an NPDES permit, an interested party may challenge the permit or its
conditions by seeking an evidentiary hearing (also referred to as an adjudicatory hearing). The
Regional Administrator (RA) either grants or denies the request. If granted, these hearings are
held before an administrative law judge (ALJ). Although the evidentiary hearing process is
designed to resolve factual disputes, a request for an evidentiary hearing is presently a
prerequisite to seeking Administrative review on any issue. Thus, if the issues raised by a
request for an evidentiary hearing are solely legal, the request will be denied. The petitioner may
then seek Administrative review of the denial. This is one avenue for seeking Administrative
review.
The second avenue is followed when an evidentiary hearing has been held, and an Initial
Decision rendered. An interested party may seek Administrative review of the Initial Decision.
It has been repeatedly held in Administrative review of such proceedings that the regulations do
not automatically provide for review of an initial decision. 40 CFR 124.91. Review is granted
only in cases in which the initial decision is clearly erroneous, or involved an exercise of policy
or discretion which is important and which should be reviewed as a discretionary matter.
Two changes in the regulations governing evidentiary hearings and administrative appeals
should be noted. An early version of the regulations held that there was no review available of a
denial of a request for an evidentiary hearing. Present regulations provide for such review, and
the standards set forth above for review of initial decisions have been applied to denials of
evidentiary hearings.
Early regulations also created a bifurcation of the evidentiary hearing procedure, referring
legal issues to the Office of General Counsel for resolution, and retaining factual issues for
disposition by the Regional Administrator in an evidentiary hearing. Administrative decisions
under these regulations refer to decisions in both fora.
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Abbreviations
ALJ - Administrative Law Judge
OGC - Office of General Counsel, Decisions
RA - Regional Administrator
FWPCA- Federal Water Pollution Control Act (Also referred to as the Clean Water
Act or "CWA")
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Regions and Correlated NPDES Appeal Numbers
Region I
(Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont)
Appeal Nos.:
75-5
75-14
75-16
76-7
78-7
Pittston, 1979
81-1
81-2
81-12
87-5
87-11
88-9
89-1
Region II
(New Jersey, New York, Puerto Rico, Virgin Islands)
Appeal Nos.:
76-1
76-2
77-13
77-20
78-3
78-8
Borden, 1983
Western, 1983
Chevron, 1983
Linden, 1983
85-1
Puerto Rico, 1987
88-5
88-8
89-17
Region III
(Delaware, D.C., Maryland, Pennsylvania, Virginia, West Virginia)
Appeal Nos.:
75-9
75-11
77-4
78-4
78-9
78-11
Hammermill, 1979
80-4
81-5
81-13
Dents, 1983
84-1
89-11
Region IV
(Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee)
Appeal Nos.
75-4
75-18
75-19
77-9
77-19
78-5
80-5
81-3
83-3
83-7
83-10
85-2
85-7
85-11
86-2
86-11
87-6
87-10
87-12
88-2
89-2
89-4
89-5
89-6
89-15
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Region V
(Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin)
Appeal Nos.:
75-6
75-15
76-3
76-4
76-5
76-6
77-7
78-2
78-6
81-12
89-12
Region VI
(Arkansas, Louisiana, New Mexico, Oklahoma, Texas)
Appeal Nos.:
77-8
77-10A
77-10B
77-14
77-16
78-10
78-13
80-3
Agrico, 1980
81-4
81-9
Burnham, 1983
Hercules, 1983
Browning, 1983
83-2
83-4
83-5
83-8
84-3a
84-4
84-5
84-6
84-7
National, 1984
84-8
84-9
84-11
85-3
85-13
85-14, 85-15, 85-16
85-17
85-18
85-19
85-21
85-22
85-23
85-25
85-26
86-1
86-5
86-12
Crockett, 1986
87-3
88-1
88-4
88-10
89-7
89-8
89-9
89-20
Region VII
(Iowa, Kansas, Missouri, Nebraska)
Appeal Nos.:
75-7
81-11
Reaion VIII
(Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming)
Appeal Nos.:
75-12
88-3
88-11
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Region IX
(California, Hawaii, Nevada, American Samoa, Guam)
Appeal Nos. 75-17
77-11
77-15
81-8
83-1
Region X
(Alaska, Idaho, Oregon, Washington)
84-10
84-12
Chemical, 1985
87-1
87-8
87-14
Appeal Nos.:
75-1,75-2, 75-3
75-8
75-10
76-8
77-1
77-2
77-3
77-5
77-12
77-18
78-12
79-1
79-2
80-1
80-2
Ore-Ida, 1983
81-6
81-7
81-10
83-9
84-3
84-13
85-6
85-8
85-9
Alaska Pulp, 1985
86-3
86-4
86-7
86-14
87-19
Sunbeam, 1988
89-13
89-14
89-16
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DRAFT
CUMULATIVE INDEX
Issues
100% Compliance 85-14, 85-15, 85-16
4
Adjudicatory Hearings 75-6, 75-7, 75-8, 75-10, 75-11, 75-16, 75-17, 75-18,
75-19, 76-2, 76-3, 76-6, 77-1, 77-2, 77-3, 77-4, 77-5, 77-7, 77-8, 77-9,
77-10A, 77-16, 77-18, 77-20, 78-2, 78-8, 78-10, 80-1, 80-2
Administrative Forum 77-13, 79-1, 79-2, 81-6
Administrative Orders 84-10
Administrative Procedure 89-14
Administrative Procedure Act 85-14, 85-15, 85-16
Affirmative Defense/Dismissal 85-14, 85-15, 85-16
Alternative Disposal 78-4
Alternative Limitations 87-14
Amended Petitions 81-13
Amending Regulations 85-14, 85-15, 85-16
Antibacksliding 85-3, Crockett, 1986; 88-5, 88-10
Anticipated Noncompliance 83-7
Antidegradation 86-1, 88-1
Appeal of Variances/Procedure 83-8
Appeal Procedures 87-10
Appointing Judicial Officers 76-8
Appreciable Harm 78-6
Articulating Issues 78-13
Automatic Denials 85-13
Available Technology 89-4
1
Backflushing 76-7
Bacteria Limits 77-11
Balanced Indigenous Population 78-6
Beneficial Use Limitation 88-1
Best Available Technology (BAT) 76-7, 77-19, Agrico, 1980; 85-21
Best Management Practices (BMP) 84-1
Best Practicable Control Technology (BPT) 77-9, 77-16
BPT in Placer Mining Industry 79-1
Bifurcated Approach 84-4, 84-13
Biomonitoring 85-22
Brine Discharge 84-8
Burden of Proof 76-7, 79-1, 86-14, 89-4
Bypass Provisions 75-1, 75-2, 75-3, 77-2, 81-6
£
Cancellation of NPDES Permit Sunbeam, 1989
Certification Conditions 75-11
Chlorine Limits 84-8
Clarifying Remands 77-19
Compliance 85-3, 88-1
Compliance/Achievement Dates 75-4
Compliance Date Extension 75-9, 75-10, 76-3, 77-9, 78-10, 88-5
Compliance Deadlines/Statutory Requirements ....;.. 77-16
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General Counsel Decisions 77-15
General Permit Conditions/Challenges '.'.'.'.'.'. !.. 81-6
Good Cause Exemptions g4_g
H
Historic Preservation 84-6, 88-4
I
Identifying Issues of Fact 77-20, 78-8
Inactive Mine Discharges 83-9
Indicator Pollutant Limitations 84-8
Information-Gathering Requirements 84-8
Informal Appeals 85-13
Initial Decisions 77-14, 77-19, 78-8
Intake Design and Location 76-7
Interim Limitations 87-8, 88-5
Interlocutory Appeal Chemical, 1985
Interlocutory Review of Procedural Rulings Pittston, 1979
Internal Wastestream Limits 84-2
Interstate Compacts/Regulations 77-13
Interstate Nexus 83-8
I
Joint Permits/Permittees 75-16, 76-6
Judicial Remands 75-1, 75-2, 75-3
Jurisdiction 79-1, 80-3, 81-6, 83-4, 83-5, 84-3a, 84-5, 86-1, 86-14, 87-14, 89-14
L
Legal Issues 75-15, 76-6, 83-9, 84-2, 84-12, 85-21, 86-4, 86-7
Legal Standards 88-1
Low Flow Conditions 78-6
Material Issue of Fact 75-14, 84-8
Meeting Water Quality Standards 78-4
Memorandum of Agreement 84-6
Modifications of Decisions 76-5
Modifications of Effluent Limitations 81-2, Hercules, 1983
Modifications of Permit Conditions/Stringency of Requirements 76-2
Modifications of Secondary Treatment Requirements 86-3, 86-4, 86-7
Modifying Guidelines 77-20
Modifying Monitoring Requirements 84-8
Monitoring 77-11
Monitoring and Reporting 87-6
Monitoring Frequency 85-2
Monitoring Provisions : 81-6
Monitoring Requirements 87-8
Moot Permit Conditions Hammermill, 1979
Motions/Response Time Chemical, 1985
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Revised Effluent Limits 85-26
Revising Permit Conditions Western, 1983; Chevron, 1983
Rights" of Appeal 80-1, 80-2
Ripeness ; 76-5
Salinity 77-11
Section 404 Permits Sunbeam, 1989
Signature Requirements , 89-20
Specifying Alternative Terms and Conditions 80-4
Standard of Review 75-15, 75-18, 75-19, 77-1, 77-2, 77-3, 77-4, 77-5, 77-7, 77-8,
77-9, 77-10A, 78-2, 78-3, 78-7, 78-8, 78-9, 78-10, 78-11, 78-12, 79-2; Pittston, 1979; 80-1,
80-2, 80-3, 80-5, 81-3, 81-13, 83-1, 83-2, 83-3, 83-4, 83-5, 83-7, 83-9; Ore-Ida, 1983;
Borden, 1983; Western, 1983; Chevron, 1983; Hercules, 1983; Burnham, 1983;
Dents, 1983; Linden, 1983; Browning, 1983; 84-3a, 84-5, 84-6, 84-11, 84-12, 85-1,
85-2, 85-7, 85-11, 85-22, 85-25, 86-2, 86-3, 86-4, 86-7, 86-11, 87-3, 87-12,
Puerto Rico, 1987, 88-1, 88-5, 89-4
State Appeals 89-1
State Certification 75-11, 75-16, 75-19, 78-3, 80-4, 81-2, 83-10, Borden, 1983;
Western, 1983; Chevron, 1983; 84-3a, 84-12, 86-3, 86-4, 86-7
Statement of Findings 75-17
State Regulations 76-6, 88-4
State Requirements 77-13
State Rules 87-6
State Water Quality Management Plan Hercules, 1983; 85-25, 85-26
State Water Quality Standards 75-17, 86-1, 87-1, 87-8, Puerto Rico, 1987; 88-1
Stays 75-14, 75-18, 76-7
Stays of Effluent Limitations Borden, 1983
Stays of Enforcement 77-3, 84-11
Stays of Proceedings 78-13, 87-19, Sunbeam, 1989
Stipulations 76-6, 85-17
Stormwater Discharges 85-21
Stream Flow Augmentation 88-10
Striking Issues 88-1
Subject Matter Jurisdiction 76-6
Supporting Reasons 83-1
I
Technical Panel 76-7
Technology 88-1
Test Species 89-4
Thermal Discharges 76-7
Thermal Limitations 78-6
Third Parties 87-19
Time Extension 85-13
Timely Challenges 86-2
Timely Filing 75-7, 77-10A, 77-10B
Timely Hearing Requests 83-7
Toxic Pollutant Effluent Standards 76-5
U.
Upset Provisions 75-1, 75-2, 75-3, 77-12
Use Designations 88-4
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INDEX
Appeal No.
Adjudicatory Hearings 75-6, 75-7, 75-8, 75-10, 75-11,
75-16, 75-17, 75-18, 75-19
Bypass Provisions 75-1, 75-2, 75-3
Certification Conditions 75-11
Compliance Date Extension 75-9, 75-10
Compliance Schedules 75-19
Compliance/Achievement Dates 75-4
Deck Drainage Limits 75-1, 75-2, 75-3
Dismissal of Appeal 75-12
- Effluent Guidelines/Limitations 75-1, 75-2, 75-3, 75-7, 75-8, 75-11, 75-16
EPA Approval 75-17
Ex parte Communications 75-7
Factual Issues 75-8
Factual Findings 75-15
Findings and Conclusions 75-6, 75-19
Forums 75-14
Joint Permits 75-16
Judicial Remands 75-1, 75-2, 75-3
Legal Issues 75-15
Material Issue of Fact 75-14
New Source Performance Standards 75-5
Permit Conditions 75-5
Permit Modifications 75-17
Raising/Stating Issues 75-7
Receiving Water Classification .. . . 75-18
Remote/Non-Remote Facility 75-8
Review of General Counsel Decisions 75-5
Standard of Review 75-15, 75-18, 75-19
State Certification 75-11, 75-16, 75-19
Statement of Findings 75-17
State Water Quality Standards 75-17
Stays 75-14, 75-18
Timely Filing 75-7
Upset Provisions 75-1, 75-2, 75-3
Vacating Orders/Revoking Decisions 75-16
Variance Panel 75-10
Variance Request 75-10
Water Quality-Based Effluent Limitations 75-4
General Counsel Decisions
OGC No. 4 (April 4, 1975) 75-5
OGC No. 9 75-14
OGC No. 13 75-6
OGC No. 15 75-14
OGC No. 17 75-14
OGC No. 19 75-14
OGC No. 23 75-14
OGC No. 25 (July 22, 1975) 75-16
OGC (July 24, 1975) 75-9
OGC No. 45 (June 23, 1976) ." 75-10
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CWA Section
Section 208(b) 81-8
Section 208(e) 81-8, 85-25
Section 301 75-5, 77-12, 80-3
Section 301(a) 83-4, 83-5, 83-8, 84-5
Section 30l(bXlXA) 79-1
Section 301(bXlXC) 75-4, 75-11, 75-17, 77-13, 81-2, Borden, 1983; 84-12, 87-1,
87-6, Puerto Rico, 1987; 88-1, 88-5
Section 30I(bX2) 87-1
Section 301(bX2XA) 76-7
Section 301(h) 86-3, 86-4, 86-7
Section 301(iX2) 78-10
Section 301(m) 87-14
Section 302 81-2, 87-1
Section 303 75-17
Section 303(c> 85-25
Section 304(b) 79-1
Section 304(bXD Agrico, 1980
Section 304(bXlXB) 77-12
Section 306 75-5, 78-5, 83-2
Section 307(a) 76-5
Section 308 79-1, 84-8
Section 308(a) 77-11, 87-6
Section 309 84-10
Section 309(aX6> 78-10
Section 316(a) 76-7, 78-6
Section 316(b) 76-7, 77-19
Section 401 . . 75-5, 78-2, 80-4, 81-2, 83-10, Borden, 1983; Western, 1983; Chevron, 1983; 84-3a
Section 401(a)(2) 77-13
Section 401(d) 75-11, 75-16
Section 402 77-12, 86-14
Section 402(aXO 76-7, 77-16, Agrico, 1980; 81-3, 81-6
Section 402(aX3) 77-10B
Section 402(bXlXQ 77-10B
Section 402(k) 76-5
Section 402(o) 88-10
Section 404 Sunbeam, 1989
Section 502(7) 80-3, 83-4, 83-5, 83-8, 84-5
Section 502(12} 80-3, 83-4, 83-5, 83-8, 84-5, 86-14
Section 509 78-13
Section 509(b) 77-16, 81-6
Section 509(bXl> 77-20
Section 509(bXlXE) Browning, 1983
Section 510 75-16, 75-17, 84-3a
Section 511(c) 86-1
Section 51 l(cXD 83-2
LT.S. Code Sections
5 USC 504 81-9
5 U.S.C. 557(b) 89-14
16 U.S.C. 470 et sea. 84-6
16 U.S.C. 1536(aX2) 81-1
(Endangered Species Act)
42 U.S.C. 4332(2XC) 81-3
(National Envriomnental Policy Act)
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Regulations Appeal No.
40CFR 120.11 75-18
40 CFR 125 75-11, 75-16
40 CFR 125.36 75-10, 75-15, 75-18, 75-19
40 CFR I25.36(b)(2)(vi) 75-7
40 CFR 125.36(1)(2) 75-6
40 CFR 125.36(n) 75-5
40 CFR I25.39(m) 75-5
CWA Section
Section 301 75-5
Section 301(b)(l)(C) 75-4, 75-11, 75-17
Section 303 75-17
Section 306 75-5
Section 401 75-5
Section 401(d) 75-11, 75-16
Section 510 75-16, 75-17
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KEY WORD TABLE
NPDES AppeaLNo./Perinltfff
75-1, 75-2, 75-3/Marathon Oil Company, Union Oil Company,
Atlantic Richfield Company, and Mobil Oil Corporation
I Appeal No. 75-11 [Consolidated No.: X-74-17CJ
Shell Oil Company (Permittee)
and Atlantic Richfield Company (Intervenor)
(Appeal No. 75-2J (Case X-74-5]
Marathon Oil Company,
Atlantic Richfield Company,
and Shell Oil Company
(Appeal No. 75-3] [Consolidated No.: X-74-18C]
Deck Drainage Limits;
Effluent Limitations;
Bypass Provisions;
75-4 /U.S. Pipe and Foundry Company
North Birmingham Complex
(Permit No. AL 0003247)
Section 30l(b)(l)(C);
Compliance/Achievement Dates;
Judicial Remands;
Upset Provisions
Water Quality-Based
Effluent Limitations
75-5/St. Regis Paper Company Buckport, Maine Mill (Permit No. ME 0002160),
and International Paper Company Jay, Maine Mill (Permit No. ME 0001937)
OGC No. 4 (April 4, 1975);
Permit Conditions;
Review of General
Counsel Decisions;
75-6/Commonwealth Edison Company,
Sabrooke Generation Station
(Permit No. IL 0003042)
OGC No. 13;
40 CFR 125.36(1X2);
75-7/U.S.S. Agri-Chemicals
Crystal City, Missouri Plant
United States Steel Corporation
(Permit No. MO 0000817)
Effluent Guidelines/Limitations;
Adjudicatory Hearings;
40 CFR 125.36(b)(2)(vi);
Sections 301, 306, 401;
New Source Performance Standards;
40 CFR 125.39(m);
40 CFR 125.36(n)
Findings and Conclusions;
Adjudicatory Hearing
Raising/Stating Issues;
Timely Filing;
Ex parte Communications
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75-8/Orca Cannery
New England Fish Company
(Permit Nos. AK-000030-2; AK-002372-8)
Factual Issues;
Adjudicatory Hearings;
75-9/BethIehem Steel Corporation,
Bethlehem, Pennsylvania Plant
(Permit No. PA 0011177)
OGC (July 24, 1975);
Compliance Date Extension
75-10/Collier Carbon and Chemical Corporation
(Permit No. AK-000050-7)
40 CFR 125.36;
Adjudicatory Hearing;
Variance Request;
75-1 I/Exxon Corporation Terminal
Facility
Pittsburgh, Pennsylvania
(Permit No. PA0034646)
40 CFR 125;
State Certification;
Certification Conditions;
75-12/United States Steel Corporation,
Atlantic City Ore Operations
(Permit No. WY-0003174)
Dismissal of Appeal
75-14/Dyecraftsmen, Inc.
Taunton, Massachusetts
(Permit No. MA0000612)
Forums;
Material Issue of Fact;
75- 15/National Steel Corporation,
Midwest Steel Division
(Permit No. IN-0000337)
Factual Findings;
Standard of Review;
Effluent Guidelines;
Remote/Non-Remote
Facility
Variance Panel;
OGC No. 45 (June 23, 1976);
Compliance Date Extension
Adjudicatory Hearing;
Effluent Limitation;
Sections 401(d) and 301(b)(l)(C)
Stays;
OGC Nos. 9,15,17,19,23
Legal Issues;
40 CFR 125.36
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75-16/Exxon Corporation
Dracut Marketing Terminal
Dracut, Massachusetts
(Permit No. MA0022225)
OGC No. 25 (July 22, 1975);
State Certification;
Effluent Limitations;
Adjudicatory Hearing;
75-17/Slerra Pacific Power Company,
(Permit Nos. NV0020095; NV0020109)
Sections 301(b)(l)(C), 303,
and 510;
EPA Approval;
State Water Quality Standards;
75-18/Reynolds Metals Company,
Sheffield, Alabama
(Permit No. AC 0000035)
40CFR 120.11;
40 CFR 125.36;
Standard of Review;
75-19/Ford Motor Company,
Sheffield Casting Plant,
Sheffield, Alabama
(Permit No. AL 0000329)
40 CFR 125.36;
Findings and Conclusions;
Adjudicatory Hearing;
Joint Permits;
Vacating Orders/Revoking Decisions;
Sections 401(d) and 510;
40 CFR 125
Adjudicatory Hearing;
Permit Modifications;
Statement of Findings
Adjudicatory Hearing;
Receiving Water;
Classification;
Stays
Standard of Review;
Compliance Schedules;
State Certification
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Deck Drainage Limits;
Effluent Limitations;
Bypass Provisions;
Judicial Remands;
Upset Provisions
NPDES Appeal Nos.: 75-1, 75-2, 75-3
Documents Available:
Remand, March 1, 1978.
Correspondence between RA and Acting Judicial Officer. July 13. 1978.
Permittees:
Marathon Oil Company, Union Oil Company,
Atlantic Richfield Company, and Mobil Oil Corporation
[Appeal No. 75-1]
Consolidated No.: X- 74-17C
Case Nos.: X-74-2
X-74-3
X-74-4
X-74-6
X-74-9
Shell Oil Company (Permittee)
and Atlantic Richfield Company (Intervenor)
[Appeal No. 75-2]
Case No.: X-74-5
Marathon Oil Company,
Atlantic Richfield Company,
and Shell Oil Company
[Appeal No. 75-3]
Consolidated No.: X-74-18C
Case Nos.: X-74-8
X-74-10
X-74-11
Background;
The Ninth Circuit Court of Appeals issued an opinion (Case Nos. 75-3794-6) regarding the
decisions of the Administrator in the above cases. The Court held that EPA must include in
Marathon's NPDES permits for Alaskan Oil platforms conditions authorizing technology-based
numerical effluent limitations to be exceeded during "upset" conditions beyond the control of the
discharger.
The Court remanded three issues to EPA:
1) The effluent limitations in the permits were remanded for EPA's failure to disclose to
petitioners, and to allow comment on, relevant data and EPA statistician's
memorandum containing the analysis underlying the final decision.
2) Deck drainage limits were remanded so that less stringent limits applicable during
periods of drilling and follow-up could be calculated.
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3) The bypass provision was remanded for clarification of its applicability in cases where
to comply would require shutting down a well, with consequent permanent loss of
production capacity.
Issue:
Should the Administrator handle cases remanded to EPA by a Circuit Court of Appeals opinion
when the matters at issue are highly technical?
Discussion:
No. Although the Administrator could carry out the Court's instructions, the cases should be
remanded to the Region for the same reasons that led the Agency to rest permit-issuing authority
in the Regions: Regional personnel are familiar with the cases, and they have access to necessary
technical expertise.
Disposition: Remanded to Region for modification of the permit in accord with the Ninth
Circuit's opinion.
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Section 301(b)(l)(C); Water Quality-Based
Compliance/ Effluent Limitations
Achievement Dates;
NPDES Appeal No.: 75-4
Documents Available:
Notice Granting Petition for Review of RA's Initial Decision, June 18, 1975.
Second Modification to Decision of the Administrator, June 24, 1976.
Denial of Motion for Reconsideration of Second Modification, September 8, 1974.
Permittee:
U.S. Pipe and Foundry Company
North Birmingham Complex
(Permit No. AL 0003247)
Background:
An evidentiary hearing was held concerning the NPDES Permit, and the RA issued an Initial
Decision. This Initial Decision was challenged by local public interest groups, and upon appeal to
the Administrator, a decision was rendered. The Administrator's decision, as modified at a later
date, upheld on appeal the Region's Initial Decision which had affirmed the original terms of the
permit. EPA's General Counsel and Assistant Administrator for Enforcement sought
reconsideration of the modified decision, particularly the portion which upheld the permit's 1979
achievement date for certain water quality-based limitations. The Administrator issued this
second modification to his decision.
Issue:
Was the Administrator legally correct in upholding a ruling that water quality-based effluent
limitations established pursuant to Section 303 of the 1972 amendments are not required by
Section 30l(b)(l)(C) to be met or fully complied with by the July 1, 1977 statutory deadline?
Discussion:
No. Based on statutory language and legislative history, all effluent limitations, whether
necessary to meet or to implement water quality standards, must be fully achieved not later than
July l, 1977, in accordance with CWA Section 301(b)(l)(C).
Disposition: Remanded to Region for modification of the permit in accordance with this order.
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OGC No. 4 (April 4, 1975);
Permit Conditions;
Review of General
Counsel Decisions;
Sections 301, 306, 401;
New Source Performance Standards;
40 CFR 125.39(m);
40 CFR 125.36(n)
NPDES Appeal No.: 75-5
Documents Available:
Notice of Receipt of Petition for Review, October 10, 1975..
Permittee:
St. Regis Paper Company
Buckport, Maine Mill
(Permit No. ME 0002160)
and
International Paper Company
Jay, Maine Mill
(Permit No. ME 0001937)
Background;
Petitioners, local public interest groups, seek review and reversal by the Administrator of the
Decision of the General Counsel on Matters of Law Pursuant to 40 CFR 125.39(m).
Issue m:
Under EPA regulations 40 CFR 125.36(n), can (and, if so, should) the Administrator review a
decision of the General Counsel on matters of law separate .and apart from review of an Initial
Decision?
Discussion (I):
(Not available)
Issues (ID:
Is the decision of the General Counsel clearly erroneous in stating that where no new source
standard of performance has been promulgated for a particular category of sources, the permit
conditions should be based upon an individual assessment of the degree of effluent control which
represents the "best practicable control technology currently available" for the individual source
in order to meet the deadline set forth in CWA Section 301? [The petitioners contend that such
an assessment should be made in light of Section 306, which requires "best available demonstrated
control technology for new sources.]
Discussion (IT):
(Not available)
Disposition: Unknown.
-------
OGC No. 13; Findings and Conclusions;
40 CFR 125.36(1)(2); Adjudicatory Hearing
NPDES Anneal No.: 75-6
Documents Available:
Notice of Granting Petition for Review and Remand to RA, September 29, 1975.
Permittee:
Commonwealth Edison Company,
Sabrooke Generation Station
(Permit No. IL 0003042)
Background:
Permittee seeks review of the Region's Initial Decision and an issue of law decided by the
General Counsel.
Issue (}):
Should a proceeding be remanded when the Region has failed to include in the Initial Decision a
statement of findings and conclusions, including the reasons and the basis?
Discussion CD:
Yes. Regulations require the Initial Decision to follow such a form, 40 CFR 125.36(1X2).
Issues (II):
Without specific factual findings and conclusions by the Regional office, can the issue of whether
the RA erred in issuing the Initial Decision without first conducting an adjudicatory hearing to
determine whether material issues of fact warrant modifying the permit be reviewed?
Discussion (ID:
No. Permittee apparently agreed to withdraw its request for an adjudicatory hearing and comply
with specific limitations set forth in a Stipulation on the assumption that the General Counsel
would decide "the question of the applicability of Illinois law and regulations" solely on the basis
of their legal applicability. However, the General Counsel found the issue to include mixed
questions of law and fact, and held that the ultimate answer to the issue posed was dependent
upon a factual finding "which is properly the subject of an adjudicatory hearing."
Disposition: The proceeding is remanded to the Region to hold an adjudicatory hearing if one is
deemed necessary to determine the factual issues presented. If the record supports findings and
conclusions which can be determined without a hearing, the Region is ordered to issue an Initial
Decision which specifically sets forth such findings and conclusions, including the reasons and
basis for them.
-------
Effluent Guidelines/Limitations;
Adjudicatory Hearings;
40 CFR 125.36(b)(2)(vi);
Raising/Stating Issues;
Timely Filing;
Ex parte Communications
NPD1S Appeal No.: 75-7
Documents Available:
Notice Granting Petition for Review of Certain Issues Contained in the Initial Decision, September
24, 1975.
Partial Decision and Remand to the RA, February 2, 1976.
Permittee:
U.S.S. Agri-Chemicals
Crystal City, Missouri Plant
United States Steel Corporation
(Permit No. MO 0000817)
Background:
An evidentiary hearing was held concerning the NPDES permit for Permittee's nitrate fertilizer
plant. The RA issued an Initial Decision on issues of fact, relying upon the OGCs rulings of law
on this matter. Permittee sought Administrative review, which was granted as to four issues.
The Administrator denied review of and upheld General Counsel rulings that:
1 ) the sole forum for review of effluent limitation guidelines is the Court of Appeals,
and the basis of those guidelines cannot be challenged in adjudicatory hearings at the
permit issuance stage; and
2) a permit applicant may show, at an adjudicatory hearing, facts which would lead to
the conclusion that the regulations are not applicable to a particular facility, but the
applicant may not elicit or produce evidence alleging a lack of foundation for those
regulations.
Assuming that the point source category effluent limitations based on guidelines presently subject
to judicial review may be incorporated into an individual permit, the rationale and data
underlying the guideline numbers cannot be challenged in adjudicatory hearings at the permit
issuance stage.
Issue m:
Did Permittee fail to state the issues to be adjudicated with sufficient "particularity" as required
by 40 CFR 125.36(b)(2)(vi) in order to raise for adjudication all issues relevant to the final
effluent limitations?
Discussion (T):
Yes. Permittee failed to raise the issue of the application of point source category effluent
guidelines until just before the hearing. Permittee's statement of issues contained no suggestion
that it sought to question the breadth of the guidelines application, but only the feasibility of the
numbers which the guidelines would require.
Issue
Despite Permittee's failure to state in its request for an adjudicatory hearing a significant issue to
be adjudicated with "particularity," as required by regulation, should this proceeding be
remanded to determine whether the arguments of the Permittee justify allowing the issues to be
raised as a matter of discretion?
-------
Discussion (III:
Yes. Since the Region did not address this issue, the Administrator cannot determine whether
there was an abuse of discretion in not allowing the Permittee to amend its request and present
evidence, A permit holder may raise additional issues For good cause and authority exists to
allow an adjudicatory hearing request to be amended where persuasive reasons are presented for
the delay in raising them.
Issue fill):
Was Permittee prejudiced and denied due process by £i part; communications between counsel
for the Region and the ALJ pertaining to the issue of application of point source category
effluent guidelines in this proceeding?
Discussion (III):
No. Ex oarte communications are improper, but in this instance, they do not appear to be so
inappropriate as to prejudice the Permittee's position, and thus a reversal is not required.
Disposition: Remanded to RA for consideration of Permittee's request to adjudicate issues not
raised in original request.
-------
Factual Issues; Effluent Guidelines;
Adjudicatory Hearings; Remote/Non-Remote
Facility
NPDES Appeal No.: 75-8
Documents Available:
Denial of Petition for Review, September 29, 1975.
Permittee:
Orca Cannery
New England Fish Company
(Permit Nos. AK.-000030-2; AK-002372-8)
Background:
Permittee seeks review of two decisions of the RA denying their request for an adjudicatory
hearing. Permittee's permits required screening of seafood waste before discharge from the
facility, rather than requiring only grinding and controlled discharge. The first hearing request
was denied on the grounds that the promulgated effluent guideline applicable to "this non- remote
facility" required screening or an equivalent, and thus, no material issue of fact was set forth. In
the second request, permittee asserted that a factual determination was necessary as to whether
the facility was, in fact, "non-remote." This request was denied for failure to disclose a matter
not originally considered.
Issue:
Should a request for review be granted on a very narrow issue of fact when Permittee has not
submitted sufficient information to indicate that the Region was incorrect in making its
determination or that the matter involves complex factual issues?
Discussion:
No.
Disposition: Petition for Review denied.
-------
OGC (July 24, 1975);
Compliance Date Extension
NFDES Appeal No.: 75-9
Documents Available:
Decision of the Administrator, September 30, 1975.
Bethlehem Steel Corporation,
Bethlehem, Pennsylvania Plant
(Permit No. PA 0011177)
Background:
Permittee seeks review of the Region's decision regarding the effective date for final permit
conditions. Permittee's requests to modify the permit and/or convene an adjudicatory hearing
were denied.
Issue:
Does the Administrator have the discretion to extend the statutory date of compliance for final
permit conditions?
Discussign:
No. This central issue was decided by the General Counsel, and neither the language of the Act,
nor the legislative history indicate otherwise.
Disposition: RA's Decision and Order affirmed. Permit to take effect upon issuance of the
Administrator's Decision.
-------
40 CFR 125.36; Variance Panel;
Adjudicatory Hearing; OGC No. 45 (June 23, 1976);
Variance Request; Compliance Date Extension
NPDES Appeal No.: 75-10
Documents Available:
Notice of Denial and Remand to Region, January 7, 1976.
Denial of Petition for Review, August 10, 1976.
Permittee:
Collier Carbon and Chemical Corporation
(Permit No. AK-000050-7)
Background:
Permittee sought review of the Region's denial of an adjudicatory hearing, and other actions, and
subsequently sought review of an accompanying OGC opinion.
Issue (I):
Do regulations authorize a party to petition the Administrator to review the denial or partial
denial by an RA of an adjudicatory hearing request?
Discussion (I):
No. See 40 CFR 125.36(n). The Administrator has discretion to review such a decision, but a
party need not request the Administrator to exercise this discretion in order to exhaust available
administrative remedies.
Issue (in:
If an adjudicatory hearing request otherwise meets the requirements of 40 CFR 125.36(c), may
the RA deny a request for an adjudicatory hearing to reconsider the RA's denial of a variance
request based on recommendations of a "variance panel"?
Discussion (ID:
No. The RA may choose to rely on the recommendations of a "variance panel" in denying a
variance request, but he is not authorized thereafter to deny a request for an adjudicatory hearing
to reconsider the denial if 40 CFR 125.36(c) is met. The decision of the variance panel cannot be
substituted for an RA's initial decision following an adjudicatory hearing with regard to material
issues of fact.
Disposition (I) fll): The denial of the variance request is vacated, and the matter is remanded to
determine if the variance request raises issues appropriate for consideration in an adjudicatory
hearing.
Issue
Does EPA have discretion under the Federal Water Pollution Control Act to issue an NPDES
permit which defers achievement of limitations based on best practicable control technology
beyond the statutory compliance date?
Discussion (III):
No.
Disposition (IIP; Permittee's Petition for Review of the General Counsel decision on this issue
was denied.
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40 CFR 125; Adjudicatory Hearing;
State Certification; Effluent Limitation;
Certification Conditions; Sections 40i(d) and 301(b)(l)(C)
NFDES Anneal No.: 75-11
Documents Available:
Denial of Petition for Review, January 19, 1976.
Denial of Petition for Reconsideration of Original Petition for Review, April 5, 7976.
Permittee:
Exxon Corporation Terminal
Facility
Pittsburgh, Pennsylvania
(Permit No. PA0034646)
Background:
The Region issued a permit containing an effluent limitation specified by the State in its FWPCA
§401 certification, as required by §401(d) and §301(b)(l)(C). The Region denied the Permittee's
request for an adjudicatory hearing as to whether the application of State certification conditions
resulted in effluent limitations more stringent than necessary to meet water quality standards,
basing its decision on its lack of jurisdiction to change State certification.
Issue:
Does the Administrator have the authority to review the denial of an adjudicatory hearing
regarding the application of State certification conditions in a permit when circumstances are not
so extraordinary as to justify his exercising his inherent discretionary authority?
Discussion:
No. Regulations in 40 CFR 125 do not provide for the review of the denial of an adjudicatory
hearing. Furthermore, the certification appears to follow normal state procedures, and the RA
has no authority to go behind the certification to determine the practicability or appropriateness
of the State requirements. A State proceeding, not an adjudicatory hearing, is the proper forum
for challenging the certification.
Disposition: Petition for Review denied.
-------
Dismissal of Appeal
NPDES Appeal No.: 75-12
Dgcumgnts Available:
uocumetus Avauame:
Notice of Withdrawal of Petition to Review and Dismissal of Appeal, March 4, 1976.
Permittee:
United States Steel Corporation,
Atlantic City Ore Operations
(Permit No. WY-0003174)
Background:
cacKgrouna:
As the result of a settlement and the reissuance of its permit, Permittee withdrew its petitions for
review of the Region's actions following an adjudicatory hearing.
Disposition: Appeal dismissed.
-------
Forums; Stays;
Material Issue of Fact; OGC Nos. 9,15,17,19,23
NPDES Appeal No.: 75-14
Documents Available:
Notice Denying Petition for Stays; December 3, 1975.
Pejinittee:
Dyecraftsmen, Inc.
Taunton, Massachusetts
(Permit No. MA0000612)
Background:
Permittee seeks to stay the effect of part of its permit pending judicial review or, in the
alternative, administrative review. Permittee's request for an adjudicatory hearing was denied
regarding its short-duration permit which required connection into the city sewerage system and
termination of direct discharges.
Issue (I):
Does the lawfulness of a City's ordinance and rate structure governing the use of its sewer
system, or the amount of time needed to complete negotiations and obtain relief, constitute a
material issue of fact appropriately considered at an adjudicatory hearing?
Discussion (I):
No. The appropriate forum is with the city or the State judicial system.
Issue fin:
Should a request for a stay pending judicial review be granted when Permittee has made no
showing that it is likely to prevail on the merits of any judicial challenge to the permit, or that it
will suffer irreparable injury by the permit being in effect during the pendency of any such
judicial review?
Discussion (JI):
No. To allow the company to continue to discharge, when it is within the technical capabilities
to terminate that discharge, solely to allow additional time to negotiate more favorable economic
terms regarding user charges would be inconsistent with the goals of FWPCA and would impose
no incentive for reaching agreement with the City.
Disposition: Stay pending judicial review denied. Administrative review denied.
-------
Factual Findings; Legal Issues;
Standard of Review; 40 CFR 125.36
NPDES Appeal No.: 75-15
Documents Available:
Notice of Denial of Petition for Review, January 7, 1976.
Permittee:
National Steel Corporation,
Midwest Steel Division
(Permit No. IN-0000337)
Background:
Permittee sought an evidentiary hearing to review its permit. Local public interest groups
intervened. Following pre-hearing conferences, the ALJ certified a stipulation which was
entered into between Permittee, EPA, and local governments, and issued an order to conform the
permit to the terms of the stipulation. The ALJ dismissed other issues raised by the public
interest groups, who petitioned the RA for review. Here, petitioners seek review of the RA's
decision which, by approving the ALJ's certification of the stipulation and dismissal of the issues
raised by petitioners, terminated the adjudicatory proceeding. The central issue raised by
petitioners is whether the findings and conclusions contained in the ALJ's Order, granting
Permittee's motion to dismiss petitioners as parties with prejudice, were supported by the record,
and whether they conform with EPA regulations.
Issue (I):
Have petitioners shown that the decision of the RA contained a finding of fact or a conclusion of
law which is clearly erroneous or an exercise of decision or policy which is important and which
the Administrator should, in his discretion, review under 40 CFR 125.36(n)(3)?
Discussion JTj:
No. To attempt to substitute the Administrator's judgment for that of the presiding officer on
these factual questions, based on the petitions presented, would be unwise in the absence of a
clearly erroneous factual finding.
Issue (III:
Did the ALJ err by ruling that PL 89-298 was of no relevance or materiality to the issues present
in this proceeding, and by not referring this legal issue to General Counsel under 40 CFR
125.36(m)?
Discussion (ID:
No. The ALJ's (i.e. presiding officer's) determination of whether the legal issue was appropriate
for resolution by the General Counsel was within his discretion. The ALJ's decision to consider
and resolve the legal issue within the prehearing stage of the adjudicatory hearing process, as
opposed to referral to General Counsel, was not in error. The purpose behind 40 CFR I25.36(m)
is to achieve Agency-wide consistency in the interpretation of FWPCA and EPA regulations, and
the present issue is not of Agency-wide applicability or importance.
Disposition: Petition for Review denied.
-------
OGC No. 25 (July 22, 1975); Joint Permits;
State Certification; Vacating Orders/Revoking Decisions;
Effluent Limitations; Sections 401(d) and 510;
Adjudicatory Hearing; 40 CFR J25
NPDES Appeal No.: 75-16
Documents Available:
Denial of Petition for Review, January 19, 1976.1
Denial of Petition for Reconsideration, April 5, 1976.
Permittee:
Exxon Corporation
Dracut Marketing Terminal
Dracut, Massachusetts
(Permit No. MA0022225)
Background:
Permittee seeks review of the RA's order vacating a prior order which granted a request for an
adjudicatory hearing. The RA vacated his prior order after the State Division of Water Pollution
Control denied the request for an adjudicatory hearing regarding the permit, jointly issued by
EPA and the State.
Issue m:
Does the RA have authority to sua soonte revoke a prior decision to grant an adjudicatory
hearing?
Discussion (D:
Yes. The RA retains authority to reconsider a decision granting an adjudicatory hearing
throughout its pendency, based on criteria set forth in 40 CFR 125.36(c). However, were it not
for the particular facts of this situation, it might have been appropriate for the RA to remand the
decision with instructions to provide an opportunity for both sides to state their positions on
whether the adjudicatory hearing should proceed. To the extent that the RA should have allowed
additional comment in this case, such error was not prejudicial.
Issue
Can the RA go behind a state certification to question the validity of conditions certified by the
State?
Discussion (l\):
No. See OGC No. 25 (July 25, 1975). Since the only issues sought to be adjudicated in this case
related to the practicability and propriety of State requirements placed in the permit pursuant to
Section 401 of FWPCA, no material issue of fact appropriate for an adjudicatory hearing existed.
The State denial of the adjudicatory hearing confirmed the existence of a State requirement,
leaving the RA no ability to change that number because of Section 401(d) and 510 of FWPCA.
Disposition (I. II): Petition for Review denied.
Permittee's petition for reconsideration was later denied since regulations do not provide
procedures for reconsideration of the Administrator's actions, and no extraordinary circumstances
were alleged.
-------
Issue
Should Permittee's motion for reconsideration of a denial of a request for Administrator's review
be granted when no extraordinary circumstances exist?
Discussion (Ifflr.
No. Regulations regarding appeals, 40 CFR Part 125, do not provide for reconsideration of
Administrator's decisions. In this case, circumstances do not justify discretionary review.
Disposition (IIP: Petition for Reconsideration denied.
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Sections 301(b)(i)(C), 303, and 510 Adjudicatory Hearing;
EPA Approval; Permit Modifications
State Water Quality Standards; Statement of Findings
NPDES Appeal No.: 75-17
Documents Available:
Denial of Petition for Review, January 19, 1976.
Permittee:
Sierra Pacific Power Company,
(Permit Nos. NV0020095; NV0020109)
Backe round*
Permittee seeks review of the Region's denial of an adjudicatory hearing, and of a General
Counsel's decision.
Issue (H:
When a State's water quality standards include a mixing zone provision, which was adopted after
permit issuance and has not yet been submitted to EPA for approval pursuant to Section 303 of
FWPCA, may the RA modify a permit to comply with the new provision?
Discussion (I):
No. The General Counsel determined that the RA may not exercise a modification procedure in
a State's water quality standards which has not yet been approved by EPA nor even submitted for
approval.
Issue flit:
Must the RA include a statement of relevant and essential findings and conclusion in his or her
decision when no adjudicatory hearing was held, and the opinion of the General Counsel held
that Permittee had no legal right to raise other issues at the adjudicatory hearing?
Discussion (ID:
No.
Disposition: Petition for Review denied.
-------
40 CFR 120.11; Adjudicatory Hearing;
40 CFR 125.36; Receiving Water;
Standard of Review; Classification;
Stays
NPDES Appeal No.: 75-18
Documents Available:
Notice of Denial of Petition for Review or Stay of Permits, January 9, 1976.
Permittee:
Reynolds Metals Company,
Sheffield, Alabama
(Permit No. AC 0000035)
Background:
Permittee seeks review of the RA's denial of its request for an adjudicatory hearing, or in the
alternative, a stay of the affected portions of its permit. Permittee requested an adjudicatory
hearing to address its objection to the "Fish and Wildlife" designation of the receiving water for
discharges from its plant, and to special requirements derived from this classification.
Issue (H:
Do regulations provide for review by the Administrator of an RA's denial of a request for an
adjudicatory hearing?
Discussion (I):
No. See 40 CFR 125.36. Moreover, the decision of the RA is not reviewable under the
Administrator's inherent authority to review actions of the RA which are either clearly erroneous
or which involve an exercise of decision or policy which is important.
Issue (H):
In light of judicial proceedings underway to review the State "Fish and Wildlife" stream
classification under 40 CFR 120.11, and Permittee's expressed intent to petition the RA for an
exception to "classifications and/or criteria" pursuant to 40 CFR 120.11, is a stay of affected
portions of the subject permit warranted?
Discussion (ID:
No. Unusual or extenuating circumstances have not been shown, and Permittee has not
adequately addressed whether it availed itself of an opportunity to secure a determination under
40 CFR 120.11 in a timely fashion, or whether there is a substantial likelihood that irreparable
injury will occur in the absence of a stay.
Disposition: Petition for Review and alternative stay of permits denied.
-------
40 CFR 125.36;
Findings and Conclusions;
Adjudicatory Hearing;
Standard of Review;
Compliance Schedules;
State Certification
NPDES Appeal No.: 75-19
Documents Availably:
Notice Granting Petition for Review and Remand, January 23, 1976.
Permittee:
Ford Motor Company,
Sheffield Casting Plant,
Sheffield, Alabama
(Permit No. AL 0000329)
Background:
Permittee seeks review of the Region's denial of its request for an adjudicatory hearing to address
final effluent limitations for BOD, and the schedule of compliance for attainment of these limits.
Issue (I):
In the absence of extraordinary circumstances which might justify the Administrator's exercise of
his discretionary authority, should the RA's denial of the request for an adjudicatory hearing be
reviewed?
Discussion O):
No. Applicable EPA regulations do not provide for administrative review of denials of requests
for an adjudicatory hearing, 40 CFR 125.36.
Issue (II):
In view of the lack of clarity in the RA's decision regarding whether his reliance on the State-
adopted compliance schedules for attainment of effluent limitations is based upon a certification
by the State under Section 401 of FWPCA, or upon other considerations, should the Petition for
Review be granted and the proceeding remanded?
Discussion (II):
Yes. If the basis is State certification, the RA would lack authority to go behind the certification
to determine the appropriateness of State requirements and would be bound to include State
certified provisions in the permit. If the basis is other considerations, it appears likely that a
"material issue of fact relevant to the question of whether the permit should be issued, denied, or
modified" would be presented. A remand for findings and conclusions regarding the schedule of
compliance issue is necessary.
Disposition: Petition for Review granted, and proceeding remanded.
-------
-------
INDEX
Issues Aooeal No.
Adjudicatory Hearing 76-2, 76-3, 76-6
Appointing Judicial Officers 76-8
Backflushing 76-7
Best Available Technology 76-7
Burden of Proof 76-7
Compliance Date Extension 76-3
Cost/Benefit Analyses 76-7
Delegating Authority 76-8
Dismissal of Appeal 76-2
Effluent Limitations . . - 76-4
Enforcement 76-5
Filing Appeals of General Counsel Decisions 76-4
Intake Design and Location 76-7
Joint Permittees 76-6
Legal Issues 76-6
Modification of Permit Conditions/Stringency of Requirements 76-2
Modifications of Decisions 76-5
Omission of Issues 76-1
Permit Conditions 76-5
Preheating Conference 76-6
Presiding Officers 76-8
Ripeness 76-5
State Regulations 76-6
Stays 76-7
Stipulations 76-6
Subject Matter Jurisdiction 76-6
Technical Panel 76-7
Thermal Discharges 76-7
Toxic Pollutant Effluent Standards 76-5
General Counsel Decisions
OGC No. 2 (December 30, 1974) 76-5
OGC No. 18 (June 25,1975) 76-3
OGC No. 21 (June 27, 1975) 76-6
OGC No. 27 (August 4, 1975) 76-5, 76-6
OGC No. 41 (June 1, 1976) 76-7
OGC No. 42 (June 9, 1976) 76-4, 76-6
OGC No. 43 (June 11, 1976) 76-6
Regulations
40 CFR 125 76-2
40 CFR 125.36 76-3
40 CFR 125.36(a)(4) 76-8
40 CFR 125.36(h)(4Xii) 76-6
40 CFR 125.36(m) ; 76-6
40 CFR 125.36(0) 76-8
-------
CWA Section Appeal No.
Section 301(b)(2)(A) 76-7
Section 316(a) 76-7
Section 316(b) 76-7
Section 307(a) 76-5
Section 402(a)(I) 76-7
Section 402(k) 76-5
Cross-Referenced Appeals
Appeal No. 75-3 (September 25, 1975) 76-3
Appeal No. 75-4 (June 24, 1976) 76-3
Public Laws
PL 89-298 t 76-4
-------
KEY WORD TABLE
NPDES Anneal No./Permittee
76-1 /Exxon Corporation
Truck Repair Facility
Linden, New Jersey
(Permit No. NJ0024236)
Omission of Issues
76-2/Blackstone Corporation
(Permit No. NY0003395)
40 CFR Part 125;
Dismissal of Appeal;
Hearing;
76-3/United States Steel Corporation (USSC)
Gary Works Facility
Gary, Indiana
(Permit No. IN 0000281)
OGC No. 18 (June 25,1975);
Adjudicatory Hearing;
Compliance Date Extension;
Modification of Permit Conditions/
Stringency of Requirements Adjudicatory
40 CFR 125.36;
Appeal No. 75-3 (Sept. 25, 1975);
Appeal No; 75-4 (June 24, 1976)
76-4/Northern Indiana Public Service Company
Bailly Generating Station
(Permit No. IN 0000132)
OGC No. 42 (June 9, 1976);
Filing Appeals of General
Counsel Decisions;
76-5/Inland Steel Company
(Permit No. IN0000094)
Toxic Pollutant
Effluent Standards;
Modifications of Decisions;
Enforcement;
Permit Conditions;
76-6/Bethlehem Steel Corporation
(Permit No. IN 0000175)
Legal Issues;
Subject Matter Jurisdiction;
State Regulations;
OGC NO. 21 (June 21, 1975);
OGC No. 27 (August 4, 1975);
OGC No. 42 (June 9, 1976);
Effluent Limitations;
PL 89-298
Ripeness;
Sections 307(a) and 402(k);
OGC No. 2 (December 30, 1974);
OGC No. 27 (August 4, 1975)
OGC No. 43 (June 11, 1976);
40 CFR 125.36(m) and (h)(4)(ii);
Adjudicatory Hearing;
Stipulations;
Prehearing Conference;
Joint Permittees
-------
76-7/PubHc Service Company of New Hampshire, et al.
(Seabrook Station, Units 1 and 2)
(Permit No. NH 0020338)
Burden of Proof;
Sections 301(b)(2)(A) and
402(a)(l);
Best Available Technology;
Stays;
Cost/Benefit Analyses;
76-8/Atlantic Richfield Company
(Docket No. X-WP-75-17)
Appointing Judicial Officers;
Presiding Officers;
Delegating Authority;
Section 316(a) and (b);
OGC No. 41 (June 1, 1976);
Thermal Discharges;
Backflushing;
Intake Design and Location;
Technical Panel
40 CFR 125.36(a)(4)
and 125.36(0)
-------
Omission of Issues;
NPDES
_: 76- 1
Documents Available:
Denial of Petition for Review, February 23, 1976.
Permijtej:
Exxon Corporation
Truck Repair Facility
Linden, New Jersey
(Permit No. NJ0024236)
Background:
Permittee filed an appeal, as a precautionary measure, to review the denial of an adjudicatory
hearing on certain monitoring requirements contained in the NPDES permit. Correspondence
later clarified that the issue had been omitted from the notice of the adjudicatory hearing by
oversight.
Disposition: Petition for Review was denied.
-------
40 CFR Part 125;
Dismissal of Appeal;
Adjudicatory Hearing;
Modificatioo of
Permit Conditions/
Stringency of Requirements
NPDES Appeal No.: 76-2
Documents Available:
Request for Briefs, April 1, 1976.
Order Granting Joint Petition for Extension of Time, June 15, 1976.
Dismissal of Appeal, July 19, 1977.
Permittee:
Blackstone Corporation
(Permit No. NY0003395)
Background:
Permittee filed a petition for review of a denial of its request for an adjudicatory hearing on a
proposed permit modification. Permittee had sought a modification to make permit conditions
less stringent, principally by allowing additional time for compliance. Briefs were to be filed on
two issues.
Issue (IY
Do EPA's regulations regarding a modification of permit conditions contemplate that "cause" will
include facts which result in less stringent requirements for the Permittee (including inter alia.
failure of suppliers to provide necessary equipment, failure of new processes or products to be
developed, unavoidable delays in construction) or are such factors only to be considered in the
exercise of EPA's enforcement discretion?
Issue fin:
Assuming that such requests for modification appropriately fall within the procedures of 40 CFR
Part 125, are there any categories of factual issues which are not appropriate for adjudication and
do not present material issues of fact, justifying denial of the request?
Disposition: The appeal was eventually dismissed based on modification of the NPDES permit.
-------
OGC No. 18 (June 25,1975); 40 CFR 125.36
Adjudicatory Hearing; Appeal No. 75-3 (Sept. 25, 1975);
Compliance Date Extension; Appeal No. 75-4 (June 24, 1976)
NPDES Appeal No.: 76-3
Documents Available:
Denial of Petition for Review, June 24, 1 976.
Permittee:
United States Steel Corporation (USSC)
Gary Works Facility
Gary, Indiana
(Permit No. IN 0000281)
Background:
Permittee seeks review of the Initial Decision of the Region sustaining the permit, as originally
issued, and of General Counsel Decision No. 1 8.
Issue (IV.
Is an "adjudicatory hearing" under 40 CFR 125.36 a formal adjudication governed by the
requirements of Sections 7 and 8 of the Administrative Procedure Act (5 U.S.C §§ 556 and 557)?
Discussion (I):
No. See Marathon Oil Company, et al.. NPDES Appeal No. 75-3 (September 25, 1975).
Issue (ID:
Is Decision of the General Counsel No. 18 erroneous?
Discussion (ID:
No.
Issue fill):
Did the Initial Decision correctly hold that EPA has no authority to extend the statutorily-
imposed deadline relating to a compliance date?
Discussion (IIP:
Yes. The Administrator modified his decision of October 10, 1975 in U.S. Pine and Foundry
Company (NPDES Appeal No. 75-4) in response to a petition for reconsideration.
Disposition: Petition for Review denied.
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OGC No. 42 (June 9, 1976); Effluent Limitations;
Filing Appeals of General PL 89-298
Counsel Decisions;
NPDES Appeal No.: 76-4
Documents Available:
Denial of Petition for Review, August 10, 1976.
Permittee:
Northern Indiana Public Service Company
Bailly Generating Station
(Permit No. IN 0000132)
Background:
Petitioner seeks review of the Decision of the General Counsel, No. 42. Although the appeal of a
General Counsel decision should not be filed until the Region has issued an Initial Decision, the
Administrator exercised his inherent discretion to entertain the Petition.
Issue:
Was the General Counsel's decision that Permittee should not be required to comply with the
requirements of Public Law 89-298, Title III--Rivers and Harbors, Section 301, Navigation,
paragraph captioned Burns Waterway Harbor, Indiana--inconsistent with the legislative history of
Public Law 89-298 and clearly erroneous?
Discussion:
No. Public Law 89-298 has no applicability in establishing effluent limitations for the NPDES
permit at issue.
Disposition: Petition for Review denied.
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Toxic Pollutant Permit Conditions;
Effluent Standards; Ripeness;
Modifications of Sections 307(a) and 402(k);
Decisions; OGC No. 2 (December 30, 1974);
Enforcement; OGC No. 27 (August 4, 1975)
NPDES Appeal No.: 76-5
Documents Available:
Correspondence between Permittee and Acting Judicial Officer. July 30, 1976.
Acceptance of Petition for Review and Request for Briefs, Aug. 18, 1976.
Decision and Order, March 24, 1977,
Notice of Opportunity to File Response, May 16, 1977.
Clarification of Decision, June 2, 1977.
Permittee;
Inland Steel Company
(Permit No. IN0000094)
Background:
Permittee seeks review of General Counsel Decision No. 27, Issue IV, which upheld the inclusion
of a permit provision providing for modification of the permit upon promulgation of toxic
effluent standards under CWA §307(a).
Issue (I):
Is a petition for review of a Toxic Pollutants permit provision premature when the permit has not
been modified yet to incorporate Section 307{a) standards, but the language of the permit
requires such modification once such standards are adopted?
Discussion (I):
No. The issue is not the interpretation of effluent standards but rather of language which has
actually been included in the permit, presenting a clear legal issue which has already been passed
upon by the Office of General Counsel. Therefore the case presents a controversy.
Issue (ID:
Is a permit condition under 40 CFR 125.22(a)(6) requiring the Agency to modify the permit to
include all toxic pollutant effluent standards adopted pursuant to Section 307(a), subsequent to
issuance of the permit, proper and consistent with Section 402(k) of the Federal Water Pollution
Control Act (FWPCA)?
Discussion (ID:
Yes. The Administrator has broad discretion pursuant to Section 402(a)(l) to include appropriate
conditions in NPDES permits. Section 402(k) provides that compliance with a permit shall be
deemed compliance, for purposes of Sections 309 and 505, with Sections 301, 302, 306, 307 and
403, except any standard under Section 307 for a toxic pollutant injurious to human health.
According to the legislative history and regulations, until the Agency modifies outstanding
permits and notifies the Permittee on issuance of 307(a) standards, the "mere promulgation" of the
307(a) standards will not subject the Permittee to enforcement actions. Once a toxic pollutant
effluent standard is made a condition of the permit, the Permittee will be held to comply with it.
Disposition: Petition for Review denied. The Decision and Order reached in this case were later
clarified, in response to a petition by the Office of General Counsel, to specify that 1) All
Section 307(a) standards are self-executing by virtue of Section 307(d). However, a 307(a)
standard for a substance not injurious to human health may not be enforced under Sections 309
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and SOS unless the permit incorporates or is modified to incorporate that standard. 2) Any
Section 307(a) standard for a toxic pollutant injurious to human health is immediately enforceable
as of the date by which compliance is required regardless of whether or not the discharger holds
a valid NPDES permit and regardless of whether that permit has been modified to incorporate the
standard.
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Legal Issues; OGC No. 43 (June II, 1976);
Subject Matter Jurisdiction; 40 CFR 125.36(m) and (h)(4Xii);
State Regulations; Adjudicatory Hearing;
OGC No. 21 (June 27, 1975); Stipulations;
OGC No. 27 (August 4, 1975);Prehearing Conference;
OGC No. 42 (June 9, 1976); Joint Permittees
NPDES Appeal No.: 76-6
Documents Available:
Acceptance of Petition for Review and Request for Briefs, Oct. 22, 1976.
Revision of Briefing Schedule, Nov. 10, 1976.
Second Revision of Briefing Schedule, Nov. 24, 1976.
Decision and Order May 2, 1977.
Permittee:
Bethlehem Steel Corporation
(Permit No. IN 0000 175)
Background:
Petitioners local and public interest groups, seek review of the RA's decision which was issued
through the Director of the Enforcement Division. After holding a prehearing conference, the
ALJ had issued a summary report describing the resolution of all but one issue set for
adjudicatory hearing. In the course of the hearing proceeding, the Region and Permittee reached
a settlement of their issues and prepared a stipulation showing resolution of the issues left for
adjudication. The stipulation was certified by the ALJ and approved by the RA. The petitioners
were informed that such action had completed the adjudicatory proceedings, and here seek a
hearing on issues which they claim were not resolved by the stipulation. (The case is remanded
on other grounds, and this issue is not reached.)
Issue m:
Did the Region, which did not designate a joint permittee or issue separate permits, follow
Agency policy with respect to the issuance of permits for discharges made by one company
through another company's outfall?
Discussion CD:
No. Accordingly, the case was remanded with instructions to reconsider whether other
dischargers should be made parties to the permit or should be separately permitted. The Agency
should obtain, if it does not already have, information regarding the nature and source of these
other discharges. No ruling was made on the right of petitioners to a hearing. They will be able
to request a hearing on the new permits for dischargers other than Permittee if problems still
remain.
Issue (ID:
Was it technically incorrect for the ALJ to strike a clearly legal issue for lack of subject matter
jurisdiction?
Discussjpn (!{}:
Yes. Section 125.36(h)(4)(ii) provides that when the Presiding Officer at a prehearing conference
identifies disputed issues of a purely legal nature, they shall be decided pursuant to the procedure
specified in Section 125.36(m). However, since the issue has been resolved by a decision of the
General Counsel, it need not be in question.
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Issue fill):
Did the ALJ properly strike the issue regarding the interpretation of state water pollution control
regulations?
Discussion fill):
Yes. The General Counsel has ruled that the purpose of the legal referral provision §125.36(m)
"is to insure that provisions of the Federal Water Pollution Control Act and implementing
regulations issued thereunder are applied uniformly in the permit issuance proceedings conducted
in the several Regional offices" and that "it is not considered the prerogative of the General
Counsel to interpret either State law, or ... Federal Constitutional law." OGC No. 21.
Disposition: Remanded for consideration of Issue I. ALJ's other contested rulings affirmed.
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Burden of Proof;
Sections 301(b)(2)(A)
and 402(a)(l);
Best Available Technology;
Stays;
Cost/Benefit Analyses;
Section 316(a) and (b);
OGCNo. 41 (June 1, 1976);
Thermal Discharges;
Backflushing;
Intake Design and Location;
Technical Panel
NPDES Appeal No.: 76-7
Dpcurqejits Available:
Notice of Opportunity to File Objections, Nov. 23. 1976.
Notice of Granting Petition for Review of Certain Matters Contained in Initial Decision of RA,
Dec. 8, 1976.
Permission to File Amicus Brief, Dec. 15, 1976.
Correction and Clarification of Briefing Schedule, Dec. 16, 1976.
Notice of Granting of Motion to File Amicus Brief, Jan. 18, 1977.
Request for Information, March 23, 1977.
Decision of the Administrator, June 10. 1977\.
Notice of Opportunity to File Briefs, July 12, 1977.
Notice of Extension fo Time to File, July 28, 1977.
Notice of Opportunity to Comment, Aug. 4, 1977.
Denial of Motion for Stay and Partial Grant of Motion to Add to the Record on Appeal. Aug. 12.
1977.
Denial of Motion and Order, Aug. 24, 1977.
Notice of Opportunity to Comment, Sept. I, 1977.
Modifications of Determinations, Nov. 7, 1977.
Denial of Request for Modification, Nov. 9, 1977.
Decision on Remand, Aug. 4, 1978.
Permittee:
Public Service Company of New Hampshire, et al.
(Seabrook Station, Units 1 and 2)
(Permit No. NH 0020338)
Background:
Permittee seeks review of the Initial Decision of the RA. The Initial Decision revoked
Preliminary Determinations which stated terms and conditions proposed for a permit for
discharges from a nuclear powered steam electric generating station adjacent to an estuary. The
RA's critical findings addressed thermal discharge impact, backflushing of the intake structure,
and intake design and location. The Administrator convened a panel of technical and scientific
experts to assist in reviewing the record on appeal. The Administrator's Decision, as discussed
below, reversed the Initial Decision and reinstated the Determinations, with some modifications.
Issue (I):
Is cost/benefit analysis required under Section 316(b) of FWPCA, which states that cooling water
intakes shall "reflect the best technology available for minimizing adverse environmental impact"?
1This Decision was modified later. See Supplemental Developments.
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Discussion (It
No. Unlike Sections 301 and 304, where Congress added express qualifiers to the law indicating
a requirement for the analysis of cost or of costs and benefits, Section 316(b) determines what the
benefits to be achieved are and directs the Agency to require use of "best technology available" to
achieve them, with no indication of a cost/benefit analysis. Only some "consideration" ought to
be given to cost.
Issue Cm:
In determining the effect of thermal discharges, must all other effects on the environment,
including effects of the intake (i.e., entrainment and entrapment) be considered?
Discussion (III:
Yes. The applicant must persuade the RA that the incremental effects of the thermal discharge
will not cause the aggregate of all relevant stresses (including entrainment and entrapment by the
intake structure) to exceed the 316(a) threshold.
Issue mi):
Must entrainment and entrapment effects be "minimized" under Section 316(b), even if they
would not cause an "imbalance" under Section 316(a)?
Discussion Hill:
Yes. This is in accord with Agency policy that "the conclusion in a 316(a) hearing should not
necessarily govern the outcome of 316(b)" (41 FR at 17389). Even if the 3I6(a) burden were met,
an applicant could face restrictions on intake capacity which could only be met by use of closed-
cycle cooling.
Issue (IV):
May the Agency restrict the capacity of intake structures under Section 316(b), and thus
indirectly necessitate a closed-cycle system?
Discussion f|V):
Yes. Sfifi Decision of the General Counsel on Matters of Law No. 41, Issue No. HI, June 1, 1976.
However, Agency policy is that the use of cooling towers under 316(b) may not be required.
Issue (IV*):
What constitutes the "receiving waters" protected under §316?
Discussion flVa):
For §316 to be meaningful, it must refer to the 'portion of the coastal waters where human use or
enjoyment of the marine resource may not be affected."
Issue (V):
Will the proposed thermal discharge limitations for the far site assure the protection and
propagation of a balanced, indigenous population of fish, shellfish, and wildlife in and on the
receiving waters under Section 3l6(a) of FWPCA?
Discussion (V):
Yes. The effects of the entire cooling system, including entrapment, entrainment, and discharge
were considered. The area that would be affected by significant rises in temperature and other
effects of the cooling water system was so small, and the available sources of recruitment and
replacement were so large, that the test of Section 3l6(a) would be met.
A review of the supplemented record indicated that the impact of backflushing on plankton
would be insignificant. Condition I(C)(6) was understood to mean that the NPDES permit at
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issue would contain appropriate limitations with regard to the avoidance of backflushing at times
of adverse meteorological and hydrological conditions.
On the basis of design and past history in New England, the Administrator concluded that cold
shock would be an infrequent and insignificant problem, and unexpected shutdown of the
diffuser would not cause measurable impacts on the balanced indigenous populations. On the
basis of the record, no anticipated effect on wildlife was found. The RA's criterion requiring the
thermal discharge to cause "no measurable rise" was ordered to be deleted, and possibly replaced,
since it was too stringent. The RA ordered development of a plan to provide adequate baseline
data so that a proper study of the plant's actual effects may be conducted.
Issue (VI):
Do the design and location of the intake at the far site and of the diffuser functioning as an
intake reflect the best available technology for minimizing adverse environmental impact under
Section 3I6(b) of FWPCA?
Discussion CVT):
Yes. Entrapment will be negligible, and entrainment of Mva will have an insignificant effect on
adult Mva populations. The far site will offer an advantage with respect to icthyoplankton since
it lies in deeper water. The use of the diffuser as an intake during backflushing is not likely to
cause entrapment in any degree more significant than the intake. The RA was directed to
consider whether an antifouling protective coating should be required on the diffusers to reduce
possible entrapment losses.
Issue {VIP:
Does Section 403 of FWPCA apply to discharges of heat?
Discussion (VIII:
Yes. The Administrator relies upon the plain meaning of the statute in the absence of strong
legislative history to contradict it.
Disposition: Initial Decision of RA reversed. Determinations reinstated, except that Condition
I(C)(2) requiring 'no measurable rise" at the Inner or Outer Sunk Rocks shall be promptly
modified by the RA in accordance with this decision. The RA is directed to consider
modification of the Determinations to impose additional conditions consistent with this opinion.
Supplemental Developments:
• On August 12, 1977, the Administrator denied a Motion for Stay, and Partially Granted a
Motion to Add to the Record on Appeal. The Administrator stated that EPA has jurisdiction
to issue a stay while a case is in the Court of Appeals. The Administrator noted that although
the Agency's regulations do not provide for issuance of stays. Section 10(d) of the
Administrative Procedure Act (5 U.S.C. §705) does provide that "when an agency finds that
justice so requires, it may postpone the effective date of action by it, pending judicial
review." In this instance, however, the standards for issuance of a stay (a four part test) were
not met.
• On August 24, 1977, the Administrator denied the RA's motion to amend the Decision to
include Modifications to the RA's preliminary determinations. Instead, the Administrator
exercised his plenary authority to recall to himself the authority to modify the determinations
which had been mandated to the RA.
* On November 9, 1977, the Office of General Counsel's request that the Administrator modify
his Decision was denied. The Administrator merely clarified his discussion of when, if at all,
cost/benefit analyses are required for determinations of various technologies.
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As noted in the Decision on Remand, dated August 4, 1978, the matter was brought before
the U.S. Court of Appeals, which remanded it for correction of procedural errors. The Court
held that certain contributions made by the Administrator's technical panel were evidentiary,
constituting evidence outside the record. A supplementary hearing was held at which the
panel members were subject to cross-examination, and the record was reopened. In its
Decision on Remand, dated Aug. 4, 1978, issued after the supplementary hearing, the
Administrator again concluded that Sections 316(a) and (b) of FWPCA had been met based on
the detailed special record describing the area's ecology.
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Appointing Judicial Officers; 40 CFR 125.36(aX4)
Presiding Officers; and 125.36(o)
Delegating Authority,
NPDES Appeal No.: 76-8
Documents Available:
Denial of Requests, October 8, 1976.
ggpnjftee:
Atlantic Richfield Company
(Docket No. X-WP-75-17)
Background:
Permittee filed a request pursuant to 40 CFR I25.36(aX4) and (o) asking the Administrator
and/or the RA to appoint the Presiding Officer in the subject case as a Judicial Officer, and to
delegate their authority to make findings of fact regarding Permittee's NPDES permit to the
Presiding Officer.
Issue:
May the Permittee's request for appointment of the Presiding Officer as Judicial Officer, and for
delegation to the Presiding Officer of the Administrator's authority to make findings of fact
regarding the permit, be granted when no initial decision has been made by the Region?
Discussion:
No. The requests are premature since there is no initial decision yet, and the Administrator may
make findings of fact only upon review of an initial decision. Even if the RA had rendered an
Initial Decision, a delegation to the Presiding Officer of the Administrator's authority to review
such a decision would be inappropriate since it would result in reversal of the roles contemplated
under the regulations for the Presiding Officer and the Regional Administrator.
Disposition: Requests denied.
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INDEX
Issues
Appeal No.
Adjudicatory Hearings 77-1, 77-2, 77-3, 77-4, 77-5, 77-7, 77-8,
77-9, 77-10A, 77-16, 77-18, 77-20
Administrative Forum 77-13
Bacteria Limits 77-11
Best Available Technology 77-19
Best Practicable Control Technology 77-9, 77-16
Bypass Provisions 77-2
Clarifying Remands 77-19
Compliance Deadlines/Statutory Requirements 77-16
Compliance Date Extension 77-9
Compliance Schedules 77-1, 77-2, 77-3, 77-20
Deep Well Injection 77-14
Effluent Guidelines 77-1, 77-2, 77-3
Effluent Limitations 77-10B, 77-20, 77-18
Findings and Conclusions 77-19
Fundamentally Different Factors Variance 77-20
General Counsel Decisions 77-15
Identifying Issues of Fact 77-20
Initial Decisions 77-14, 77-19
Interstate Compacts/Regulations 77-13
Modifying Guidelines 77-20
Monitoring 77-11
Navigable Water/Waters of the U.S 77-11
Permit Modifications 77-3, 77-18, 77-20
Permit Conditions 77-11, 77-13
Petition for Review 77-15
Public Hearing/Variances 77-5
Remanded Effluent Limitations 77-16
Remands 77-14, 77-15
Requests for Permit Modifications 77-iOB
Salinity 77-11
Standard of Review 77-1, 77-2, 77-3, 77-4, 77-5, 77-7, 77-8, 77-9, 77-10A
State Requirements 77-13
Stay of Enforcement 77-3
Timely Filing : 77-10A, 77-IOB
Upset Provisions 77-12
General Counsel Decisions
OGC No. 3 (March 6, 1975) 77-2, 77-3
OGC No. 6 (April 8, 1975) 77-14
OGC No. 12 77-15
OGC No. 23 (July 3, 1975) . 77-2, 77-3
OGC No. 41 (June 1, 1976) 77-19
OGC No. 53 (December 17, 1976) 77-11, 77-15
OGC No. 57 (March 16, 1977) 77-12
OGC No. 59 (April 7, 1977) 77-13
OGC No. 67 (Nov. 11, 1977) 77-15
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Regulations Appeal No.
40 CFR 125 77-5, 77-10B
40 CFR 125.28 77-11
40 CFR I25.35(a) 77-3
40 CFR 125.35(c) 77-20
40 CFR I25.35(h) 77-20
40 CFR 125.36 77-15
40 CFR I25.36(b)(l) 77-3
40 CFR 125.36(c)(2) 77-1, 77-2
40 CFR 125.36(1)(2) 77-19
40 CFR I25.36(n) 77-14
40 CFR I25.37(a) 77-11
40 CFR I25.41(c) 77-13
40 CFR 419 77-14
CWA Section
Section 301 77-12
Section 301(b)(l)(C) 77-13
Section 304(b)(l)(B) 77-12
Section 308(a) 77-11
Section 316(b) 77-19
Section 401(aX2) 77-13
Section 402 77-12
Section 402(a)(l) 77-16
Section 402(a)(3) 77-10B
Section 402(b)(0(C) 77-10B
Section 509(b) 77-16
Section 509(b)(l) 77-20
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KEY WORD TABLE
NPDES Aaaeal No./Permittee
77-1/Morpac, loc.
(Permit Nos. AK-000065-5; AK-002311-6)
Standard of Review;
Adjudicatory Hearings;
Compliance Schedules;
77-2/New England Fish Company (NEFCO)
(Permit Nos. AK-000067-1; AK-002369-8)
Standard of Review;
Adjudicatory Hearings;
Compliance Schedules;
Effluent Guidelines;
Effluent Guidelines;
40 CFR 125.36(c)(2)
OGC No. 3 (March 6, 1975);
OGC No. 23 (July 3, 1975);
40 CFR 125.36(c)(2)
77-3/Whitney-Fidalgo Seafoods, Inc.
(Permit Nos. AK-000101-5; AK-000079-5; AK-002368-0; AK-000102-3)
Standard of Review;
Adjudicatory Hearings;
Permit Modification;
40 CFR 125.35(a);
40 CFR 125.36(b)(l);
77-4/Bethlehem Mines Corporation
(Permit No. PA 0012360)
Standard of Review;
Adjudicatory Hearing
77-5/E.C. Phillips and Son Inc.
(Ketchikan)
Standard of Review;
Adjudicatory Hearing;
77-7/ReichhoId Chemicals, Inc.
(Permit No. IL 0034622)
Standard of Review;
Adjudicatory Hearing
77-8/International Minerals &
Chemical Corporation
(Permit No. LA 0007587)
Standard of Review;
Adjudicatory Hearing
Compliance Schedules;
Effluent Guidelines;
Stay of Enforcement;
OGC No. 3 (March 6, 1975);
OGC No. 23 (July 3, 1975)
Public Hearing/Variances;
40 CFR 125
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77-9/Stauffer Chemical Company
(Permit No. TN 0003433)
Standard of Review;
Adjudicatory Hearing;
77-lOA/Internatioaal Minerals &
Chemical Corporation
(Permit No. LA 0007854)
Timely Filing;
Standard of Review;
Adjudicatory Hearing
77-1 OB/Reynolds Metals Company
(Permit No. LA 0000183)
Sections 402(a)(3);
Section 402(b)( I )(C);
40 CFR Part 125;
77-1 I/The City of Phoenix
(Permit Nos. AZ0020559; AZ0020524)
40 CFR 125.28 and I25.37(a);
Sections 308(a);
OGC No. 53 (Dec. 17, 1976);
Permit Conditions;
Bacteria Limits;
77-12/Atlantic Richfield Company
Prudhoe Bay, Alaska
(Permit No. AK-002122-9)
OGC No. 57 (March 16, 1977);
Sections 301, 304(bXlXB),and 402;
Best Practicable Control Technology;
Compliance Date Extension
Timely Filing;
Requests for Permit Modifications;
Effluent Limitations
Navigable Water/Waters of the U.S.;
Salinity;
Monitoring;
Water Quality Standards
Upset Provisions;
Bypass Provision
77-13/The New York City Department of Water Resources
Permit Nos. NY 0026115 NY 0026166 NY 0026239
NY 0025212 NY 0026182 NY 0026204 NY 0026158
NY 0026221 NY 0026140 NY 0026174 NY 0026247
NY 0026107 NY 0026133 NY 0027073 NY 0026191
Permit Conditions;
Interstate Compacts/Regulations;
State Requirements;
Administrative Forum;
OGC No. 59 (April 7, 1977);
40 CFR 125.41(c);
Sections 301(bXi)(C), and
401(a)(2)
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77-14/Shell Oil Company
Norco, Louisiana Refinery
(Permit No. LA 003522)
OGC No. 6 (April 8, 1975);
40 CFR 125.36(n) and 419;
Initial Decisions;
77-15/The Town of Buckeye
(Permit No. AZ0020222)
40 CFR 125.36;
OGC No. 12;
OGC No. 53 (Dec. 17, 1976);
OGC No. 67 (Nov. 11, 1977);
77-16/Exxon Company, U.S.A.
(Baton Rouge, Louisiana Refinery)
(Permit No. LA-0005584)
Compliance Deadlines/
Statutory Requirements;
Best Practicable Control
Technology;
Deep Well Injection;
Remands
Petition for Review;
General Counsel Decisions;
Remands
Sections 402(a)(l), 509(b);
Remanded Effluent
Limitations;
Adjudicatory Hearing
77-18/Whitmey Seafoods, Inc.
(Permit Nos. AK-000079-5; AK-002368-0; AK-000102-3)
Adjudicatory Hearing;
Permit Modification;
77-19/Carolina Power & Light Company
(Brunswick Steam Electric Plant)
(Permit No. NC 0007064)
Clarifying Remands;
Initial Decision;
40 CFR 125.36(0(2);
Best Available Technology;
77-20/Mayaguez Water Treatment Company Inc.
(Permit No. PR-0023043)
40 CFR 125.35(c) and (h);
Section 509(b)(0;
Fundamentally Different
Factors Variance;
Compliance Schedule;
Effluent Limitations
OGC No. 41 (June 1, 1976);
Findings and Conclusions;
Section 316(b)
Adjudicatory Hearing;
Modifying Guidelines;
Permit Modification;
Effluent Limitations;
Identifying Issues of Fact
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Standard of Review;
Adjudicatory Hearings;
Compliance Schedules;
Effluent Guidelines;
40 CFR 125.36(c)(2)
NPDES Appeal No.: 77-1
Documents Available:
Denial of Petition for Review, February 9, 1977.
Permittee:
Morpac, Inc.
(Permit Nos. AK-000065-5; AK-002311-6)
Background:
Permittee requested modification of compliance schedules, or alternatively a stay of enforcement
of those schedules pending judicial review of the applicable guidelines in a case to which
Permittee is a party. The Region denied the request because of Permittee's failure to challenge
permit terms when issued. The Region found that the compliance schedules were reasonable and
caused no irreparable harm.
Permittee's request for an adjudicatory hearing was denied because of Permittee's failure to
object to the permit terms when issued, and because the Region found that no material issues of
fact relevant to whether the permit should be modified. Permittee seeks review of the Region's
actions.
Issue:
Should a petition for review be granted when the Region's actions in denying an adjudicatory
hearing are not clearly erroneous, and the petition raises no important issues of policy?
Discussion:
No. The regulations provide no appeal from a Region's decision to deny an adjudicatory hearing
(Decision of the Administrator, No. 9, 12/3/75). An inherent power of review may exist if the
Region's actions were clearly erroneous, or if important questions of policy exist which are
appropriate for discretionary review, but these are not the present circumstances.
Disposition: Petition for Review denied.
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Standard of Review;
Adjudicatory Hearings;
Compliance Schedules;
Effluent Guidelines;
OGC No. 3 (March 6, 1975);
OGC No. 23 (July 3, 1975);
40 CFR 125.36(c)(2)
NPDES Appeal No.: 77-2
Documents Available:
Denial of Petition for Review, March 1, 1977.
Permittee:
New England Fish Company (NEFCO)
(Permit Nos. AK-000067-1; AK-002369-8)
Background:
Permittee applied for modification and/or stay of enforcement of the compliance schedules of its
permits, pending judicial review in a pending case to which Permittee is a party. The request
was denied because of Permittee's failure to appeal the issuance of the permit, and because of a
finding that the compliance schedules were reasonable and achievable. The Region also relied on
the General Counsel's position that the Agency has authority to enforce the terms of a permit
pending judicial review of promulgated effluent guidelines. (OGC No. 3 and 23).
The Region denied Permittee's request for an adjudicatory hearing since it was beyond the
Region's authority to issue a permit that requires effluent limitations less stringent than the
applicable effluent guidelines. The Region concluded that Permittee raised no material issues of
fact relevant to whether the permit should be modified. Permittee seeks review of this denial.
Issue:
Should a petition for review be granted when the Region's actions in denying an adjudicatory
hearing are not clearly erroneous, and the petition raises no important issues of policy?
Discussion:
No. The regulations provide no appeal from a Region's decision to deny an adjudicatory hearing.
Decision of the Administrator No. 9, Dec. 31, 1975. An inherent power of review may exist if
the Region's actions were clearly erroneous, or if important questions of policy exist which are
appropriate for discretionary review, but these are not the present circumstances.
Disposition: Petition for Review denied.
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Standard of Review;
Adjudicatory Hearings;
Permit Modification;
40 CFR 125.35(a);
40CFR I25.36(b)(l);
Compliance Schedules;
Effluent Guidelines;
Stay of Enforcement;
OGC No. 3 (March 6, 1975);
OGC No. 23 (July 3, 1975)
NPDES Appeal No.: 77-3
Documents Available:
Denial of Petition for Review, March 2, 1977.
Permittee:
Whitney- Fidalgo Seafoods, Inc.
(Permit Nos. AK. -000101 -5; AK-000079-5; AK.-002368-0; AK.-000102-3)
Background:
Permittee requested modification of the compliance schedules or alternatively a stay of
enforcement of those schedules pending judicial review of the applicable effluent guidelines in a
case to which Permittee is a party. The request was denied because of Permittee's failure to
challenge permit terms when issued, and because of a finding that compliance schedules were
reasonable and achievable. The Region stated that NPDES permits and Agency guidelines are
separate entities for which separate legal appeal routes are provided. The effluent limitation in a
permit need not be held in abeyance pending judicial review of promulgated effluent guidelines.
Permittee's requests for an adjudicatory hearing, modification of the permits, or a stay of
enforcement of the permits, were denied. Regarding the adjudicatory hearing, the Region found
no material issues of fact relevant to whether the permits should be modified. The request to
modify the permits was denied because it was beyond the Region's authority to issue a permit
with less stringent standards than the applicable guidelines. The Region denied the request for a
stay, adverting to the position of the Agency's Office of General Counsel that permits may be
issued and enforced during appeals of guidelines. Permittee seeks review of the Region's actions.
Issue m:
Do regulations provide for an appeal to the Administrator of the denial of a permit modification?
Discussion (I):
No. The proper mechanism is to request an adjudicatory hearing (40 CFR 125.35(a);
I25.36(b)(l)).
Issue
Do regulations provide for an appeal from the Region's decision to deny an adjudicatory hearing?
Discussion (It):
No. Decision of the Administrator No. 9, Dec. 31, 1975. An inherent power of review may exist
if the Region's actions were clearly erroneous, or if important questions of policy exist which are
appropriate for discretionary review, but the case at hand does not fall into these categories.
Issue (III):
Pending judicial review of promulgated effluent guidelines, should the Administrator issue a stay
of enforcement of a permit when not in connection with an adjudicatory hearing?
Discussion flip:
No. Regulations do not authorize the Administrator or the Regional Administrator to issue stays
of enforcement of permits (except in connection with adjudicatory hearings as provided in 40
CFR 125.36(d)(2)). The issuance of stays of permits pending judicial review of guidelines is
contrary to Agency policy.
Disposition: Petition for Review denied.
-------
Standard of Review;
Adjudicatory Hearing
NPDES Appeal No.: 77-4
Documents Available:
Denial of Petition for Review, April 22, 1977.
Permittee:
Bethlehem Mines Corporation
(Permit No. PA 0012360)
Background:
Permittee seeks review of the Region's decision denying its request for an adjudicatory hearing.
Ijsjie.:
Should the petition for review of the denial of a request for an adjudicatory hearing be granted?
Discussjgn:
No. Regulations provide no appeal from the Region's decision to deny an adjudicatory hearing.
Decision of the Administrator No. 9, Dec. 31, 1975. An inherent power of review may exist if
the Region's actions were clearly erroneous or if important policy questions exist which are
appropriate for discretionary review, but this is not the case at hand.
Disposition: Petition for Review denied.
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Standard of Review;
Adjudicatory Hearing;
Public Hearing/Variances
40 CFR 125
NPDES Appeal No.: 77-5
Documents Available:
Denial of Petition for Review, April 25, 1977.
Permittee:
E.G. Phillips and Son Inc.
(Ketchikan)
Background:
Permittee seeks review of the Region's denial of a request for an adjudicatory hearing with
regard to Permittee's request for a variance. Permittee also requested a remand with instructions
to grant the request for a hearing on its request for a variance.
Issue (IV.
Should a petition for review be granted when the Region's actions in denying an adjudicatory
hearing are not clearly erroneous, and the petition raises no important issues of policy?
Discussion (I):
No. The regulations provide no appeal from a Region's decision to deny an adjudicatory hearing.
Decision of the Administrator No. 9, Dec. 31, 1975. An inherent power of review may exist if
the Region's actions were clearly erroneous, or if important questions of policy exist which are
appropriate for discretionary review, but these are not the present circumstances.
Issue (ID:
Did the Region err by denying the permittee's request for a variance without having held a
public hearing?
Discussion
No. The Public Notice of Variance Request did not require the Region to hold a hearing unless
the Enforcement Division Director determined there was a "significant public response," which is
lacking in this case. Neither the regulations (40 CFR Part 125) nor the draft regulations for
variances provide for an appeal from the Region's decision not to hold a public hearing.
Disposition: Petition for Review denied.
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Standard of Review;
Adjudicatory Hearing
NPDES Appeal No.: 77-7
Documents Available:
Denial of Petition for Review, April 25, 1977.
Permittee;
Reichhold Chemicals, Inc.
(Permit No. IL 0034622)
Background:
Permittee seeks review of the Region's denial of a request for an adjudicatory hearing.
Issue:
Should a petition for review be granted when the Region's actions in denying an adjudicatory
hearing are not clearly erroneous, and the petition raises no important issues of policy?
Discussion:
No. The regulations provide no appeal from a Region's decision to deny an adjudicatory hearing.
Decision of the Administrator No. 9, Dec. 31, 1975. An inherent power of review may exist if
the Region's actions were clearly erroneous, or if important questions of policy exist which are
appropriate for discretionary review, but these are not the present circumstances.
Disposition: Petition for Review denied.
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Standard of Review;
Adjudicatory Hearing
NPDES Appeal No.: 77-8
Documents Available:
Denial of Petition for Review, May 3, 1977.
Permittee:
International Minerals &
Chemical Corporation
(Permit No. LA 0007587)
Background:
Permittee seeks review of the Region's decision to deny a request for an adjudicatory hearing.
Issue:
Should a petition for review be granted when the Region's actions in denying an adjudicatory
hearing are not clearly erroneous, and the petition raises no important issues of policy?
Discussion:
No. The regulations provide no appeal from a Region's decision to deny an adjudicatory hearing.
Decision of the Administrator No. 9, Dec. 31, 1975. An inherent power of review may exist if
the Region's actions were clearly erroneous, or if important questions of policy exist which are
appropriate for discretionary review, but these are not the present circumstances.
Disposition: Petition for Review denied.
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Standard of Review; Best Practicable Control Technology
Adjudicatory Hearing; Compliance Date Extension
NPDES Appeal No.: 11-9
Documents Available:
Denial of Petition for Review, March 26, 1977.
Permittee:
Stauffer Chemical Company
(Permit No. TN 0003433)
Background:
Permittee seeks review of the Region's denial of its request for an adjudicatory hearing. The sole
issue of the request—the .permittee's inability to install the equipment representing best
practicable control technology by the permit's required date--was found to be inappropriate for
administrative review. The Region noted that the Federal Water Pollution Control Act
Amendments of 1972 require compliance by July 1, 1977, and that the Agency lacks authority to
extend the date for compliance.
Issue:
Should a petition for review be granted when the Region's actions in denying an adjudicatory
hearing are not clearly erroneous, and the petition raises no important issues of policy?
Discussion:
No. The regulations provide no appeal from a Region's decision to deny an adjudicatory hearing.
Decision of the Administrator No. 9, Dec. 31, 197S. An inherent power of review may exist if
the Region's actions were clearly erroneous, or if important questions of policy exist which are
appropriate for discretionary review, but these are not the present circumstances.
Disposition: Petition for Review denied.
-------
Timely Filing;
Standard of Review;
Adjudicatory Hearing
NPDES Appeal No.: 77-10A
Documents Available:
Denial of Petition for Review, May 26, 1977.
Permittee:
International Minerals &
Chemical Corporation
(Permit No. LA 0007854)
Background:
Permittee seeks review of the Region's denial of a request for an adjudicatory hearing regarding
the denial of a proposal for returning suspended solids removed from the intake water back to the
river. The basis for the denial was the failure to raise the issue at the time of initial permit
issuance. Thus, Permittee had waived the right to raise these issues. Permittee had raised no new
material issues of fact, and no substantive change in any of the facts as they existed at the time
of permit issuance.
Issue:
Should a petition for review be granted when the Region's actions in denying an adjudicatory
hearing are not clearly erroneous, and the petition raises no important issues of policy?
Discussion;
No. The regulations provide no appeal from a Region's decision to deny an adjudicatory hearing.
Decision of the Administrator No. 9, Dec. 31, 1975. An inherent power of review may exist if
the Region's actions were clearly erroneous, or if important questions of policy exist which are
appropriate for discretionary review, but these are not the present circumstances.
Disposition: Petition for Review denied.
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Sections 402(a)(3); Timely Filing
Section 402(b)(I)(C); Requests for Permit Modifications
40 CFR Part 125 Effluent Limitations
NPDES Appeal No.: 77-1 OB
Documents Available:
Denial of Request for Partial Reconsideration and Modification of Decision, July 25, 1977.
Partial Denial of Petition for Review and Remand. June 24. 1977.
Permittee:
Reynolds Metals Company
(Permit No. LA 0000183)
Background:
Permittee seeks partial reconsideration and modification of the Administrator's decision to
remand the case to the Region for reconsideration of the effluent limitations in the permit insofar
as they are based on an erroneous figure for the volume of effluent discharged. The decision
stated that the Region need not consider any of Permittee's other contentions. Permittee contends
that the remand order is unduly narrow and raises serious issues of law and policy.
Issu^e:
Should requests for permit modification be granted based on grounds which should have properly
been raised at the time of initial permit issuance?
Discussion:
No. Objections to permits must be filed in a timely manner so that permits may be regarded as
"final" at a certain point, and so that the permit-issuing authority will not have to constantly re-
examine its determinations.
Disposition: Request for Partial Reconsideration and Modification of Administrator's Decision to
Remand is denied.
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40 CFR 125.28 and 125.37(a);
Sections 308(a);
OGC No. 53 (Dec. 17, 1976);
Permit Conditions;
Bacteria Limits;
Navigable Water/Waters of the U.S.;
Salinity;
Monitoring;
Water Quality Standards
NPDES Anneal No.! 77-11
Documents Available:
Partial Denial of Petition and Partial Remand, July 28, 1977.
Permittee:
The City of Phoenix
(Permit Nos. AZ0020559; AZ0020524)
Background:
Permittee seeks review of the Region's Initial Decision setting permit conditions, including fecal
coliform bacteria limits and water supply salinity monitoring.
Issue (I):
Does the Salt River constitute a
Agency with jurisdiction?
'water of the U.S.," i.e., a navigable water, thus providing the
Discussion CD:
Yes. See Decision of the General Counsel, No. 53. Nothing in the petition indicates that the
Decision was clearly erroneous or that it is an exercise of decision or policy which is important
and appropriate for discretionary review.
Issue
Should the Region reconsider the permit condition relating to fecal coliform bacteria limits to
determine its appropriateness under the particular local circumstances?
Discussion (U):
Yes. Disinfection requirements for domestic wastewater are to be set in accordance with a State's
Water Quality Standards. This aspect of the case is remanded for reconsideration of the
limitations, and if necessary, the reopening of the hearing to take evidence as to the full body
contact usage of the waters. Alternatively, parties may stipulate as to these matters. The basis
for imposition of a fecal coliform requirement must be articulated by the Region since it is not
clear why the waters were treated as being used for full body contact recreation rather than
partial body contact recreation. The Water Quality Standards relied upon by the Region establish
a different bacteriological quality standard for each classification.
Issue HID:
Is the permit condition relating to water supply salinity monitoring appropriate under the local
circumstances?
Discussion (III):
Yes. The Region's decision is not clearly erroneous, nor does it contain an exercise of decision or
policy which is important and appropriate for discretionary review; moreover, the issue was not
raised by permittee in a timely manner. Monitoring can be required under Section 308(a) of the
Clean Water Act and 40 CFR 125.37(a) in connection with developing or assisting in the
development of any effluent limitation. The cost does not appear to be burdensome, estimated
data is sufficient, and precise knowledge of the daily variances in salinity is unnecessary.
Disposition: Petition for Review denied in part, and remanded to Region for reconsideration of
fecal coliform limits.
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OGC No. 57 (March 16, 1977); Upset Provisions;
Sections 301, 304(b)(i)(B), and 402; Bypass Provision
NPDES Appeal No.: 77-12
Documents Available:
Remand, July 29, 1977.
Permittee:
Atlantic Richfield Company
Prudhoe Bay, Alaska
(Permit No. AK-002122-9)
Background:
Permittee seeks review of the Region's decision concerning a permit for the domestic waste
treatment facility. The permit as issued stated that all authorized discharges should be consistent
with the permit terms and conditions. It contained no upset provisions, and it prohibited "any
diversion from or bypass of facilities necessary to maintain compliance" except where
unavoidable to prevent loss of life or severe property damage.
Issue:
May the Region, without sufficient articulation of the analysis undertaken to determine whether
upset and bypass provisions were necessary to carry out §§301 and 304(b)(l)(B), merely state the
reasonableness of the Agency's decision not to include these provisions?
Discussion:
No. Based on Decision No. 57 of the General Counsel, if applicable effluent limitation guidelines
do not address the availability of upset and maintenance conditions, or if no effluent limitations
guidelines have been promulgated, the Regional Administrator must determine whether such
conditions "are necessary to carry out the provisions of the [Federal Water Pollution Control Act
Amendments of 1972 ("FWPCA")].1 §402(a)(l). Among those provisions are §§301 and 304 which
require permittees to meet effluent limitations based upon the 'best practicable control technology
currently available.' It is in establishing these limitations that the Regional Administrator must
consider claims that upsets and bypasses may be unavoidable at the location in question and that
limitations for such situations are required to implement the statutory requirement of
achievement of limitations based upon 'best practicable' technology."
Disposition: Remanded to RA.
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Permit Conditions;
Interstate Compacts/Regulations;
State Requirements;
Administrative Forum;
OGC No. 59 (April 7, 1977);
40 CFR 125.41(c);
Sections 301(b)(l)(C),
401(a)(2)
NPDES Appeal No.: 77-13
Documents Available:
Denial of Appeal, November 15, 1977.
Permittee;
The New York City Department of Water Resources
Permit Nos.
NY 0025212
NY 0026221
NY 0026107
NY 0026115
NY 0026182
NY 0026140
NY 0026133
NY 0026166
NY 0026204
NY 0026174
NY 0027073
NY 0026239
NY 0026158
NY 0026247
NY 0026191
Background:
Permittee seeks review of the Region's Initial Decision and the Decision of the General Counsel.
As a result of these decisions, the permit included a condition for compliance with all
requirements of the Water Quality Regulations of the Interstate Sanitation Commission (ISC).
The General Counsel ruled that the ISC regulations are more stringent limitations under either
state law or federal law within the meaning of FWPCA §301(bXO(C). Thus, permit conditions
based on these limits must be included in the permits to satisfy §301, even if such conditions
were not included in the existing State certification.
Issue m:
Under Section 30l(b)(l)(C) of FWPCA must the permit issued to permittee include limitations
based on regulations which were promulgated pursuant to an interstate compact, and which apply
to the waters into which permittee makes its discharges?
Discussion (I):
Yes. The Region's actions in issuing permits containing these limits were not clearly erroneous,
nor do they present important issues suitable for discretionary review.
Issue (11):
Absent unusual circumstances, is it appropriate for EPA to question the legal basis for actions
taken by another governmental entity within its apparent authority, i.e., the validity of the
Article of the interstate compact upon which the regulations were based?
Discussion (ID:
No.
Issue nil):
Did the Office of General Counsel correctly conclude that the requirements under an interstate
compact could be considered as either state or federal law necessary for inclusion in NPDES
permits under Section 301(b)(l)(C)?
-------
Discussion (III):
Yes. No authority has been cited to suggest that the OGC Decision No. 59 is incorrect.
Issue (TVY
Should a failure to comply with requirements for including interstate regulations in NPDES
permits set forth in Section 401(a)(2) and 40 CFR 125.41(c) justify, excuse, or require the
omission from a permit of limitations otherwise required under Section 301(b)(l)(C)?
Discussion (IV):
No. (Such noncompliance was alleged but not explained in this case].
Issue (V):
Are state requirements includable in NPDES permits only if set forth in the State's certification
under Section 401 of FWPCA?
Discussion fV">:
No. A state cannot preclude EPA from carrying out Section 301(bXO(C) of FWPCA. EPA has
an independent obligation to assess the need for more stringent conditions to satisfy the
requirements of Section 301(b)(l)(C).
Issue (VI):
May challenges to the reasonableness of regulations issued by another governmental agency and
issues of constitutional law (i.e., due process) properly be raised in the administrative forum?
Discussion (VI):
No.
Disposition: Petition for Review denied.
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OGC No. 6 (April 8, 1975); Deep Well Injection;
40 CFR 125.36(n) and 419; Remands;
Initial Decisions
NPDES Appeal No.: 77-14
Documents Available:
Partial Denial of Petition for Review. August 9. 1977.
Remand, February 8, 1978.
Denial of Petition for Review and Order Directing the Initial Decision on Remand to be
Supplemented, February 22, 1979.
Permittee;
Shell Oil Company
Norco, Louisiana Refinery
(Permit No. LA 003522)
Background:
Permittee initially filed a Petition for Review of Region VFs Initial Decision. The primary issue
was whether the effluent limitations for the facility should be reduced because it discharges a
portion of its waste water to a deep well, and if so, how. EPA policy disfavors well injection and
asserts that EPA has the authority to include well injection control provisions in NPDES permits.
The 5th Circuit had rejected this claim of authority.
The Administrator remanded the proceeding. On remand, the Region ordered the Enforcement
Division to issue a revised permit to reflect any waste water flow being discharged to a deep well
in order that the total waste stream is reduced by the proportion that the well injected flow bears
to the total plant flow. The Region did not explain whether "total plant flow" meant actual flow
or the flow used by EPA in calculating the effluent guidelines. As a protective appeal, Permittee
seeks review of the Region's decision in response to the remand.
Issue m:
Does the Region's decision on remand, ordering the Enforcement Division to issue a revised
permit regarding deep well injection, constitute an Initial Decision which is reviewable pursuant
to 40 CFR 125.36(n), when the revised permit has not yet been issued?
Discussion
No. The Region must clarify the decision on remand to indicate which of two proposed methods
of calculating total plant flow is correct. Then, the supplemented decision will be reviewable,
particularly since the deep well injection issue involves an important question of Agency policy.
Disposition: Petition for Review Denied, pending the RA's clarification of the Decision on
Remand. The issue of whether the effluent limitations should be reduced because its discharge
of a portion of its wastewater to a deep well remains unresolved.
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40 CFR 125.36; Petition for Review;
OGC No. 12; General Counsel Decisions;
OGC No. 53 (Dec. 17, 1976); Remands
OGC No. 67 (Nov. 11, 1977);
NPDES Appeal No.: 77-15
Documents Available:
Partial Denial of Petition for Review and Remand, August 31, 1977.
Denial of Petition for Review, February 2, 1978.
Permittee;
The Town of Buckeye
(Permit No. AZ0020222)
Background:
Permittee seeks review of the Region's findings, and Decision No. 67 of the General Counsel.
Permittee's initial petition for Administrative review resulted in a partial denial of appeal and a
remand to review certain findings of fact and to certify questions of law to the General Counsel
for a decision of law. The Region was directed to reconsider the fecal coliform limitations based
upon State Water Quality Standards. A revised Initial Decision has not yet been issued.
Issue:
Should a petition for review be granted regarding a General Counsel decision when a revised
Initial Decision, in accordance with a remand, has not yet been issued?
Discussion:
No. The regulations provide that decisions of the General Counsel shall be final with respect to
each referred issue of law, and shall be relied on by the Region in rendering its initial decision
(40 CFR 125.36(m)(4)). The regulations contemplate that review of General Counsel Decisions
will take place in the context of review of the Region's Initial Decision (40 CFR 125.36(n)(i)).
Since the Initial Decision was remanded and has not yet been revised, the petition is premature.
Disposition: Petition for Review denied.
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Compliance Deadlines/ Sections 402(a)(l), 509(b);
Statutory Requirements; Remanded Effluent
Best Practicable Control Limitations;
Technology; Adjudicatory Hearing
NPDES Appeal No.! 77-16
Documents Available:
Partial Denial of Petition for Review and Remand, August 31, 1977.
Permittee:
Exxon Company, U.S.A.
(Baton Rouge, Louisiana Refinery)
(Permit No. LA-0005584)
Background:
Permittee seeks review of the Region's denial of a request for an adjudicatory hearing to
determine whether EPA should allow relaxed permit parameters beyond the compliance date set
in a modified permit. The Region had denied the request based on Permittee's failure to state
material issues of fact, and EPA's inability to waive statutory requirements such as the set
deadline.
Issue (IV.
Was the Region's denial of an adjudicatory hearing clearly erroneous?
Discussion (\):
Yes. The Region based the permit's effluent limitations on effluent guidelines which had been
judicially challenged, remanded to the Administrator, and which had not yet been reissued. This
raises the legal issue of whether the Region should base permit limitations on the remanded
effluent limitations or whether the Region should make an independent determination of what is
the best practicable control technology currently available (BPCTCA) under §402(a)(l) of
FWPCA. If the latter is correct, then a material issue of fact has been raised (whether Exxon's
proposed process constitutes BPCTCA), and the request for an adjudicatory hearing should not
have been denied.
Issue (la):
Is this a case for which Administrative review should be granted?
Discussion (fa):
Yes. Prior rulings of the Administrator establish that although Agency regulations do not provide
for an appeal from denials of evidentiary hearings, inherent power of review may be exercised if,
as here, the denial was clearly erroneous.
Issue HIV.
Did the region err in its denial of an- adjudicatory hearing as to the extension of the effective
date of the limitations?
Discussion (ID:
No. The Agency has no authority to extend the statutory deadline.
-------
Disposition: The Administrator directed Permittee to submit to the region a request for a legal
decision pursuant to §125.36(m), and also directed the Region to grant Permittee's request for an
adjudicatory hearing subject to cancellation, if appropriate, after receipt of the decision of the
General Counsel.
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Adjudicatory Hearing; Effluent Limitations
Permit Modification;
NPDES Anneal Nn.t 77-18
Documents Available:
Denial of Request for Review, October 20, 19 . [Illegible Date]
Permittee:
Whitmey Seafoods, Inc.
(Permit Nos. AK-000079-5; AK-002368-0; AK-000102-3)
Background
Permittee requests review of the Region's denial of an adjudicatory hearing. The permits had
been modified to include a provision regarding reporting requirements. Permittee seeks to raise
issues relating to the validity and reasonableness of the effluent limitations in the permits as
originally issued.
Issue:
Did the Region properly deny the request for an adjudicatory hearing?
Discussion:
Yes. Administrative review of denials of adjudicatory hearings is not provided for by EPA
regulations. They may only be granted under the Administrator's inherent power to review when
the denial is clearly erroneous, or if important issues of policy exist. Modification of a permit
does not reopen all the permit terms for reconsideration. Permittee raised no material issue of
fact with respect to the modification.
Disposition: Request for Review denied.
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Clarifying Remands; OGC No. 41 (June 1, 1976);
Initial Decision; Findings and Conclusions;
40 CFR 125.360X2); Section 316(b)
Best Available Technology;
NPDES Appeal No.: 77-19
Documents Available:
Notice of Opportunity to File Comments or Objections, Dec. 6. 1977.
Notice of Opportunity to File Comments or Objections, Feb. 2, 1978.
Remand. Feb. 20. 1978.
Notice of Opportunity to Comment, March 23, 1978.
Denial of RA's Petition for Reconsideration and Clarification, June 22, 1978.
Extension of Time, Aug. 1, 1978.
Supplement to the Initial Decision, August 31. 1978.
Denial of Carolina Power and Light Company's Motion to Reopen the Record, August 31, 1978.
Grants of Petitions for Review, Dec. 4. 1978.
Suspension of Briefing Schedule, Feb. 16. 1979.
Permittee:
Carolina Power & Light Company
(Brunswick Steam Electric Plant)
(Permit No. NC 0007064)
Background:
Permittee, joined by State agencies regulating utility companies, sought review of an Initial
Decision and General Counsel opinion. The factual issue raised was whether Permittee's once-
through cooling system satisfied BAT required by FWPCA §316(b). The Administrator remanded
the case to the RA, who had failed to provide in his decision a statement of findings and
conclusions including the reasons and basis for these as required by 40 CFR 125.36(1 )(2). The
Administrator deferred ruling on the petitions for review of the Initial Decision (including
certain decisions of the General Counsel) until after reissuance of the revised Initial Decision.
Issue (D:
Should the Region's petition to reconsider or clarify the remand be denied when the
Administrator's Remand has specifically identified matters which were not adequately addressed
in the Initial Decision?
Discussion (I):
Yes. The matters specified by the Administrator were intended to define and limit the scope of
the remand. The Initial Decision should contain a more complete description of the evidence, a
description of the maior areas of uncertainty and conflict in the evidence, and a discussion of
how the Region resolved the uncertainties and conflicts in light of the conclusions it has reached
and will hereafter reach. S& 40 CFR 125.36(1X2).
If the reason for omitting the discussion of a matter is that it does not affect the Region's
conclusions, then the Region should state the reason for the omission. Issues and facts which are
legitimately in dispute, and which are material to the ultimate determinations, should not be
hidden in the shadows of a more general discussion of the ultimate issues and facts. The Region
must articulate with reasonable clarity the reasons for its conclusions and the significance of the
crucial facts in reaching those conclusions.
Issue
Should the permittee's motion to reopen the record have been denied where motion is based on
alternative mitigation measures addressing secondary adverse impact in lieu of application of best
available technology to primary adverse impact.
-------
Discussion
yes. The measures offered by permittee do not meet standards set by Section 316 (b), which
require the application of the best technology available for minimizing adverse environmental
impact. Since the proposed plan was the sole basis for the motion to reopen the record, the
motion is denied.
Disposition: Review of the Supplemented Initial Decision was granted eventually; however,
briefing was deferred indefinitely in response to meetings between the parties' technical experts
and a third party mediator to narrow the issues and facilitate possible settlement.
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40 CFR 125.35(c) and (h); Adjudicatory Hearing;
Section 509(bX 1); Modifying Guidelines;
Fundamentally Different Permit Modification;
Factors Variance; Effluent Limitations;
Compliance Schedule; Identifying Issues of Fact
NPDES Appeal No.! 77-20
Documents Available:
Denial of Appeal, February 24, 1978.
Permittee:
Mayaguez Water Treatment Company Inc.
(Permit No. PR-0023043)
Background:
Permittee filed an appeal of the Region's decision denying requests for an adjudicatory hearing.
Administrative review of denials of adjudicatory hearings is not provided for by EPA
regulations. They may only be granted under the Administrator's inherent power to review when
the denial is clearly erroneous, or if important issues of policy exist.
Issue fl):
Was it clearly erroneous for the Region to grant an adjudicatory hearing as to some issues and
deny it as to others?
Discussion fll:
Yes. If a request for an adjudicatory hearing meets the requirements of the regulations (40 CFR
125.35(c)) and sets forth material issues of fact relevant to the question of whether a permit
should be issued, denied, or modified, the Region must grant the request and assign the matter
for a hearing. The Presiding Officer may only identify disputed issues of fact and strike issues
not material or relevant to the question of whether a permit should be issued and what conditions
to such permits should be required.
Issue fin:
May a request for a modification of the applicable guidelines be entertained in an adjudicatory
hearing?
Discussion (II):
No. Under Section 509(bXl) of FWPCA, such a challenge is required to be brought is a United
States Circuit Court of Appeals within 90 days from the date of promulgation of the guidelines,
unless the grounds arose after the 90th day.
issue nnv
May a request for inclusion of a permit condition for a possible means of discharge which is not
currently lawful be granted, to allow the Permittee to avoid the necessity of initiating a separate
permit modification procedure if such discharge is later specifically authorized by statute or
regulation?
Discussion fill):
No. The Agency has no such authority.
Issue (IV):
May the Administrator set less stringent effluent limitations for a particular discharge, based on
water quality considerations, than the applicable effluent guidelines require?
-------
Discussion fIV>:
No. On the basis of water quality considerations, only more stringent, not less stringent,
limitations than those attainable by "best practicable control technology currently available" can
be imposed.
Issue
Was it improper for the Region to defer making written findings as to Permittee's request for a
variance?
Discussion (V):
Yes. Only "fundamentally different factors" can justify a variance. The RA deferred ruling on
the variance request because of an erroneous conclusion that the treatment capability of the plant
could be the basis of a variance request. The matter is remanded for a determination as to
whether Permittee is entitled to a variance. Pending this variance determination, the request for
an adjudicatory hearing is held in abeyance.
Issue
Does denial of an Enforcement Compliance Schedule Letter (ECSL) confer on Permittee a right
to an adjudicatory hearing?
Discussion (VI):
No. Issuance of ECSL is a matter of enforcement discretion.
Disposition: Petition for Review denied as to all but Issue V, above. Case remanded to Region
for reconsideration of that issue in light of this decision.
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INDEX
Issues Appeal No.
Adjudicatory Hearings 78-2, 78-8, 78-10
Alternative Disposal 78-4
Appreciable Harm 78-5
Articulating Issues 78-13
Balanced, Indigenous Population 78-6
Compliance Date Extension 78-10
Dechlorination 78-4
Denitrification 78-4
Existence and Timeliness of State Certification 78-2
Final Decisions/Judicial Review 78-13
Flow Calculation 78-4
Identifying Issues of Fact 78-8
Initial Decisions 78-8
Low Flow Conditions 78-6
Meeting Water Quality Standards 78-4
New Source/Existing Source 78-5
Once-through/Open Cycle Cooling System 78-7
Permit Conditions 78-9, 78-11
Permit Requirements 78-4
Promulgation of Standards, Effect of 78-5
Remand 78-13
Standard of Review 78-2, 78-3, 78-7, 78-8, 78-9, 78-10, 78-11, 78-12
State Certification 78-3
Stay of Proceedings 78-13
Thermal Limitations 78-6
General Counsel Decisions
OGC No. 5 (April 4, 1975) 78-13
OGC No. 13 78-2
OGC No. 33 (Oct. 31, 1975) 78-4
OGC No. 51 (October 8, 1976) 78-5
OGC No. 58 (March 29, 1977) 78-3
OGC No. 71 (August 28, 1978) 78-5
Regulations
40 CFR 122.1(i) : 78-6
40 CFR 122.9(b)(l) 78-6
40 CFR 125.36 78-10
40 CFR 125.36(b)(v) and (vi)(I978) 78-13
40 CFR 125.36(n) 78-8
40 CFR 125.36(1) 78-8
40 CFR 125.36(n)(4) 78-7, 78-9, 78-11, 78-12
CWA Section
Section 301(i)(2) 78-10
Section 306 78-5
Section 309(a)(6) 78-10
Section 316(a) Variance 78-6
Section 401 78-2
Section" 509 ..'.... 78-13
-------
Cross-Referenced Appeals Appeal No.
Appeal No. 78-2 (March 16, 1978) 78-7
Appeal No. 75-4 (October 10, 1975) 75-5
Appeal No. 78-7 (August 28, 1978) 78-9, 78-11, 78-12
Appeal No. 77-20 (February 24, 1978) 78-8
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KEY WORD TABLE
NPDES Anneal No./Permitfee
78-2/E.I. du Pont de Nemours & Co.
(Permit No. IL-0001767)
Adjudicatory Hearing;
Existence and Timeliness
of State Certification;
Standard of Review;
Section 401;
OGC No. 13
78-3/The Pequannock, Lincoln Park and Fairfield Sewerage Authority
(Permit No. NJ 0029386)
OGC No. 58 (March 29, 1977);
State Certification;
Standard of Review
78-4/BIue Plains Sewage Treatment Plant
(Permit No. DC 0021199)
(Docket Number DC-AH-0001
and DC-AH-102)
Denitrification;
Dechlorination;
Flow Calculation;
Alternative Disposal;
78-5/Beker Phosphate Corporation
Manatee County, Florida
(Permit No. FL 0032522)
OGC No. 51 (October 8, 1976);
OGC No. 71 (August 28, 1978);
New Source/Existing Source;
78-6/Publlc Service Company of Indiana, Inc.
Wabash River Generating Station
(Permit No. IN 0002810)
Cayuga Generating Station
Low Flow Conditions;
Thermal Limitations;
Section 316(a) Variance;
40 CFR 122.1(i);
78-7/Boston Edison Company
Pilgrim Nuclear Station Units 1 & 2)
(Permit Nos. MA0003557 and MA002513S)
40 CFR 125.36(n)(4);
Section 316;
Standard of Review;
OGC No. 33 (Oct. 31, 1975);
Meeting Water Quality Standards;
Permit Requirements
Section 306;
Promulgation of Standards, Effect of;
Appeal No. 75-4 (October 10, 1975)
40 CFR I22.9(b)(l);
Appreciable Harm;
Balanced, Indigenous
Population
Once-through/Open Cycle
Cooling System;
Appeal No. 78-2 (March 16,
1978)
-------
78-8 (Consolidated)/
Shell Oil Company
(Permit No. AT0099791)
Texaco, Inc.
(Permit No. AT0100218)
Mobil Exploration & Producing
(Permit No. AT0099821)
Continental OH Co.
(Permit No. AT0099881)
40 CFR 125.36(n) and (1);
Standard of Review;
Initial Decisions;
78-9/Potomac Electric Power Company (PEPCO),
Potomac River Generating Station
Identifying Issues of Fact;
Adjudicatory Hearings;
Appeal No. 77-20 (February 24, 1978)
78-10/Hunt-Wesson Foods, Inc.
Gretna Edible Oil Refinery LA.
(Permit No. LA0003484)
40 CFR 125.36;
Sections 301(i)(2) and
309(a)(6);
Standard of Review;
78-11/Washington Suburban Sanitary
Commission, Seneca Creek Interim
Wastewater Plant
(Permit No. MD 0021491)
40 CFR 125.36(n)(4);
Standard of Review;
Permit Conditions;
Appeal No. 78-7 (August 28, 1978)
Houston Oil & Minerals Corp.
(Permit No. AT0099970)
Murphy Oil Corp.
(Permit No. ATOI00188)
Gulf Oil Corp.
(Permit No. AT0099848)
Tenneco Oil Company
(Permit No. AT0099864)
Identifying Issues of Fact;
Adjudicatory Hearings;
Appeal No. 77-20 (February 24, 1978}
Adjudicatory Hearings;
Compliance Date Extension
78-12/Atlantic Richfield Company
(Monti Bay Terminal)
(Permit No. AK-002648-4)
40 CFR 125.36(n)(4);
Standard of Review;
Appeal No. 78-7 (August 28, 1978)
-------
78-13/PubIic Service Company of Oklahoma
(Black Fox Station)
(Permit No. OK0034614)
40 CFR I25.36(b)(v) and
(vi)(1978);
Articulating Issues;
Section 509;
Remand;
Stay of Proceedings;
Final Decisions/Judicial Review;
OGC No. 5 (April 4, 1975)
-------
Adjudicatory Hearing;
Existence and
Timeliness of State
Certification;
Standard of Review;
Section 401;
OGC No. 13
NPDES Appeal No.: 78-2
Documents Available:
Denial of Appeal, March 16, 1978.
Permittee:
E.I. du Pont de Nemours & Co.
(Permit No. IL-0001767)
Background:
Permittee seeks review of the RA's decision to dismiss an adjudicatory hearing proceeding
regarding permit requirements which are based on State certification. The RA concluded that the
adjudicatory hearing forum was improper for an attack on the validity of a State certification
pursuant to FWPCA §401.
The time sequence for State certification was as follows: On September 24, 1973, EPA sent to the
State a request for certification of the draft NPDES permit. On October 29, 1973, the State wrote
to EPA about problems with the draft permit, and indicated it could not certify the permit until
corrections were made. On October 2, 1974, the State sent a letter containing the certification to
EPA. Permittee also seeks review of the Region's decision to deny permittee's petition for review
of an order by the ALJ granting the Region's motion to dismiss.
Issue (Tj:
Did a factual question regarding certification exist, creating an issue suitable for resolution at an
adjudicatory hearing?
Discussion (I):
No. Under some circumstances, the question whether or not a certification exists can be a factual
question suitable for resolution at an adjudicatory hearing. In this case, no factual issue was
raised as to whether or not the document in question was a certification; only a legal question
existed as to whether the certification was timely. Thus, there is no error in the denial of an
adjudicatory hearing.
Issue
Did the Region correctly conclude that State certification was timely under Section 401 of the
Federal Water Pollution Control Act Amendments of 1972 (FWPCA)?
Discussion (ID:
Yes. Under Section 401 of FWPCA, if the State "fails or refuses to act on a request for
certification within a reasonable period of time (which shall not exceed one year) after receipt of
such requests, the certification requirements of this subsection shall be waived with respect to
such Federal application." No clear error was shown by the RA's determination that the State's
October 29, 1973 response fully met the statutory requirements for State action on a request for
the existence of State certification within one year. The Region's alternative rationale, that even
adopting the statutory interpretation most favorable to the Permittee (that a new certification was
required within one year after the original denial letter), the State's October 2, 1974 letter was
timely, also shows no clear error.
Disposition: Petition for Review denied.
-------
OGC No. 58 (March 29, 1977);
State Certification;
Standard of Review
NPDES Appeal No.: 78-3
Documents Available:
Denial of Petition, March 1978.
Permittee:
The Pequannock, Lincoln Park and Fairfield Sewerage Authority
(Permit No. NJ 0029386)
Background:
Permittee seeks review of the Region's denial of an adjudicatory hearing.
Issue:
May EPA review the Region's denial of an adjudicatory hearing when the issues raised by the
permittee address solely the subject matter of the State's certification letter?
Discussion:
No. EPA has no authority to ignore State certification or to determine whether limitations
certified by the State are more stringent than required to meet the requirements of State law.
-------
Denitrification; OGC No. 33 (Oct. 31, 1975);
Dechlorination; Meeting Water Quality Standards;
Flow Calculation; Permit Requirements
Alternative Disposal;
NPDES Appeal No.: 78-4
Documents Available:
Notice of Extension of Time to File, June 13. 1978,
Service List, July 13, 1978.
Notice of Opportunity to File Comments or Objections, July 14, 197 B,
Notice Granting Partial Review. October 18, 1978.
Denial of Application for Enlargement of Time. November 13. 1978.
Denial of Motion to File Written Responses and to Present Oral Argument, February 9, 1979.
Decision, May 3, 1979.
Initial Decision, September 3, 1981.
Order Denying Review, April 6, 1986.
Memorandum Decision, United States Court of Appeals for the District of Columbia Circuit, May
20, 1983.
Permittee:
Blue Plains Sewage Treatment Plant
(Permit No. DC 0021 199)
(Docket Number DC-AH-0001)
Background,:
The NPDES permit for the Blue Plains facility was issued May 31, 1974. An evidentiary hearing
was held on the request of Permittee, the local government, and local environmental groups, who
objected to the permit and/or requested modifications to it. The RA reached its Initial Decision
over two years later. Partial review of the Initial Decision was granted on issues including
denitrification, dechlorination, and flow calculation. The permit was about to expire, so this
decision was to serves as precedent and guidance for permit renewal. Upon renewal, several
objections were made by the same groups. Order Denying Review appealed to the U.S. Court of
Appeals.
Issue m:
Did the RA err in deleting the denitrification requirement from the permit, thereby leaving the
effluent limitations on total phosphorous concentration as the sole means of nutrient control?
Discussion (T):
No. Effluent limitations more stringent than the Act's technology- based secondary treatment
requirements can only be imposed if they are necessary to meet water quality standards or other
requirements of state or federal law. There is no solid technical evidence in the record to
indicate that denitrification requirements are necessary to meet applicable water quality
standards.
The Administrator noted that even though the RA did err by suggesting that cost is a factor when
permit effluent limitations are necessary to meet water quality standards, and that downstream
discharge limitations may be relaxed after upstream sources are taken into account, these errors
in reasoning did not mean that the denitrification requirement must be reinstated. The RA's
errors regarding applicable water quality standards also were irrelevant in this instance.
Issue
Did the RA err by adding to the permit a numerical requirement limiting the level of free
chlorine in the effluent to a level suggested in EPA's water quality criteria?
-------
Discussion (ID:
Yes. Current effluent guidelines and D.C. water quality standards contain no chlorine limitation
requirement. Although evidence exists in the record to indicate that excessive levels of chlorine
could violate the District's narrative standards which prohibit materials that are harmful to
human, animal, plant, or aquatic life, the water quality number selected by the RA was an EPA
water quality criterion. Its imposition as an effluent limitation cannot be justified without
further explanation.
Issue (III):
Did the RA err in its rejection of a proposal to adopt a period shorter than one year for the
measurement of flow limitations?
Discussion (III):
No. Neither the record nor the applicable regulations indicate that a shorter period is required or
that the yearly period for measurement will result in any harm that a shorter period would have
avoided.
Issue
Did ALJ err in failing to require a feasibility study of land disposal alternatives as a condition in
the permit to attain effluent limitations.
Discussion (IV):
Yes. Case remanded to EPA by U.S Court of Appeals. ALJ had failed to require a feasibility
study, considering the issue moot in light of actions by permittee and provisions of a Compliance
Order requiring a study of plans for attainment of effluent limitations. Evidence suggests the
feasibility of the alternative treatment program, hence it is reversible error that ALJ considered
the issue moot, in light of the failure to conduct a study in the intervening four years.
Disposition: Original permit remanded to the Region. Permit renewal and appeal prior to final
Regional decision. U.S. Court of Appeals for D.C. Circuit remends case to EPA and orders
performance of a land disposal feasibility study.
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OGC No. 51 (October 8, 1976);
OGC No. 71 (August 28, 1978);
New Source/ Existing Source;
Section 306;
Promulgation of Standards, Effect of;
Appeal No. 75-4 (October 10, 1975)
NPDES Appeal No.: 78-5
Documents Available:
Intial Decision, May 2, 1978.
Notice Concerning Responses to Assistant Regional Counsel's Letter, June 28. 1978.
Notice Granting Petition for Review of Certain Matters Contained in the RA's Initial Decision.
September I. 1978.
Decision, February 22, 1979.
Permittee:
Beker Phosphate Corporation
Manatee County, Florida
(Permit No. FL 0032522)
Background:
Petitioner, the County in which the Beker facility is located, seeks review of the RA's Initial
Decision, which held that the Beker mining facility is an existing source, and not a new source,
under §306 of the Federal Water Pollution Control Act (FWPCA). The issue arose because new
source performance standards for the phosphate rock subcategory were proposed June 10, 1976,
but they were not promulgated until March 10, 1978. The permit was issued on March 21, 1977.
At the hearing contesting the permit and the existing source status, the only real issue discussed
was whether "construction" had commenced prior to June 10, 1976. The issue of the effect of the
Agency's failure to promulgate standards within 120 days of the proposal date was not raised.
Currently at issue is the correct legal interpretation of the new source provisions of the Act.
Issue:
Is the mining operation, whose permit was issued during the period between proposal and
promulgation of new source performance standards, a "new source" under §306 of the FWPCA
when the proposed standards were not promulgated within the requisite statutory period?
Discussion:
No. A "new source" is defined in §306(a)(2) of the Act as "any source, the construction of which
is commenced after the publication of proposed [new source performance standards]. .. which
will be applicable to such source, if such standard is thereafter promulgated in accordance with
this section." Section 306(b)(l)(B) provides that after affording interested persons an opportunity
to comment in writing on the proposed standards, the Agency shall promulgate the standards
"within one hundred twenty days" after their publication.
The Administrator bases his rationale on Decision No. 71 of the General Counsel, issued in
another NPDES proceeding, which addresses the Agency's responsibility to promulgate new
source performance standards within 120 days of the proposal date. It holds that a facility cannot
be a new source for purposes of §306 prior to the date of final promulgation.
According to NPDES Appeal No. 75-4, the date for applying pollution standards is the date when
the Region makes its determination to issue the permit. In this instance, since the Region issued
the permit ffter the standards were proposed but frefojg they were promulgated, and further
since the proposed standards were not promulgated within the required period, the facility is not
a new source, regardless of whether or not construction has commenced.
Disposition; The RA's determination that the Beker facility is an existing source is affirmed, but
for reasons totally different from those contained in the Initial Decision.
-------
Low Flow Conditions; 40 CFR 1 22.9
-------
Discussion
A "balanced, indigenous population* is broadly defined in the regulations, 40 CFR 122.1(i).
These make it clear that both individual and community considerations are relevant. In this case,
the thermal discharges from the facilities have had noticeable effects on individual species, while
overall community diversity and abundance remain unaffected. The Administrator held that
"§3l6(a) cannot be read to mean that a balanced indigenous population is maintained where the
species composition, for example, shifts from a riverine to a lake community or, as in this case,
from thermally sensitive to thermally tolerant species. Such shifts are a war with the notion of
'restoring* and 'maintaining' the biological integrity of the Nation's waters."
Issue HID:
Did the RA err in failing to consider the effects of thermal discharges under conditions of low
river flow?
Discussion
Yes. Low river flow is measured in the Indiana water quality standards by the Qr-irfevel, which
is the "average minimum seven-consecutive-day low flow which occurs once in ten years." Low
flow conditions may be reasonably expected to occur during the expected period of operation of
the facilities, and they are essential to any realistic assessment of the impact of the thermal
discharges on the aquatic community. The case is remanded to address this issue, and to consider
to the extent deemed material the effects of the cooling water intake structures, and the
interaction of heat with other pollutants in the river.
Issue (IV):
Did the RA err by concluding that §316(a) requires a demonstration by the Permittee which is
"totally biologically oriented," and that there is no "provision for the application of economic
factors in the consideration of alternative thermal effluent limitations"?
Discussion (IV):
No. The decision to grant or deny a request for less stringent thermal limitations pursuant to
§316(a) hinges solely on proof of biological effects of the discharges. Consideration of economic
factors is only appropriate in setting the original thermal limitations from which the §316(a)
variance is sought on biological grounds. This is true whether the original thermal limitations are
derived from Federal technology- based effluent limitations or from state water quality standards.
Disposition: Remanded to the Region. The remand order was stayed on February 27, 1980,
pending a final decision on Permittee's Motion to Vacate Remand Order for Lack of Jurisdiction.
-------
40 CFR 125.36(n)(4); Once-through/Open Cycle
Section 316; Cooling System;
Standard of Review; Appeal No. 78-2 (March 16, 1978)
NPDES Aooeal No.: 78-7
Documents Available:
Denial of Petitions for Review, August 28, 1978.
Permittee:
Boston Edison Company
Pilgrim Nuclear Station Units 1 & 2)
(Permit Nos. MA0003557 and MA0025135)
Background:
Petitioners seek review of the Initial Decision which allows the Permittee to operate the nuclear
station (Units 1 and 2) with a "once-through* or open cycle cooling system pursuant to Section
316 of the Clean Water Act.
Issue:
Should petitions for review be accepted when the Initial Decision is neither clearly erroneous nor
involves an exercise of decision or policy which is important and warrants discretionary review?
piscussioq:
No. There is no appeal as of right from an Initial Decision of a Regional Administrator, 40 CFR
125.36(n)(4). NPDES Appeal No. 78-2.
Disposition: Petitions for Review denied.
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40CFR I25.36(n)and(l);
Standard of Review;
Initial Decisions;
Identifying Issues of Fact;
Adjudicatory Hearings
Appeal No. 77-20 (February 24, 1978)
NPDES Appeal No.: 78-8 (Consolidated)
Documents Available:
Denial of Petitions for Review. August 28, 1978.
Denial of Petitions for Review, February 27, 1979.
Permittees:Shell Oil Company
(Permit No. AT0099791)
Texaco, Inc.
(Permit No. AT0100218)
Mobil Exploration & Producing
(Permit No. AT0099821)
Continental Oil Co.
(Permit No. AT0099881)
Houston Oil & Minerals Corp.
(Permit No. AT0099970)
Murphy Oil Corp.
(Permit No. AT0100188)
Gulf Oil Corp.
(Permit No. AT0099848)
Tenneco Oil Company
(Permit No. AT0099864)
Background: In an earlier proceeding, pursuant to 40 CFR 12S.36(n) and (1) the Acting Judicial
Officer denied petitions for review of the RA's denial of an adjudicatory hearing request when
material issues of fact relevant to whether permits should be issued, denied, or modified were
lacking. Specified issues of law which had been referred to the General Counsel had not been
rendered yet, and consequently no "Initial Decision" had been made by the RA. Thus,
discretionary review was held to be premature. Following the General Counsel's decision,
requests for a consolidated adjudicatory hearing were granted, and notice was issued. The
hearing has not yet been held. Permittees filed petitions for review as "protective appeals" in the
event that the decision to grant the hearing requests is deemed to be an "Initial Decision" of the
RA for purposes of filing petitions for review with the Administrator pursuant to 40 CFR
125.36(n).
Issue (I):
When the RA changes its original decision denying the request for an adjudicatory hearing on the
basis of a General Counsel's decision, are petitions for review premature when filed after
issuance of the notice calling the hearing, but prior to the occurrence of the hearing?
Discussion:
Yes. A reviewable "Initial Decision" cannot come into existence until completion of the hearing
and issuance of an Initial Decision by the RA based upon the record of the hearing.
Issue fin:
When granting the request for an adjudicatory hearing, is it the RA's function to decide what
issues of fact should be considered at the hearing?
Discussion
No. The presiding officer, not the RA, identifies issues of fact for consideration at the hearing.
The fact that the RA has designated issues should not preclude the presiding officer from making
his own determinations. NPDES Appeal No. 77-20.
Disposition: Petitions for Review denied.
-------
40 CFR 125.36(n)(4);
Standard of Review;
Permit Conditions
Appeal No. 78-7 (August 28, 1978)
NPDES Appeal No.: 78-9
Documents Available:
Denial of Petition for Review, October 4, 1978.
Permittee.:
Potomac Electric Power Company (PEPCO),
Potomac River Generating Station
Background:
Petitioner seeks review of the Initial Decision concerning NPDES permit conditions for the
Permittee's facility.
Issue:
Is a petition for review normally accepted when the Initial Decision is neither clearly erroneous
nor involves an exercise of decision or policy which is important and warrants discretionary
review?
Discussion:
No. There is no appeal as of right from an Initial Decision, 40 CFR I25.36(n)(4). NPDES
Appeal No. 78-7.
Disposition: Petition for Review denied.
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40 CFR 125.36;
Sections 301(iX2) and
309(aX6);
Standard of Review;
Adjudicatory Hearings;
Compliance Date Extension
NPDES Appeal No.: 7S-10
Documents Available:
Denial of Petition for Review, October 24, 1978.
Permittee:
Hunt-Wesson Foods, Inc.
Gretna Edible Oil Refinery LA.
(Permit No. LA0003484)
Background:
Permittee seeks review of three determinations by the RA: (1) the denial of a request for an
extension of a compliance deadline pursuant to section 301(iX2) of the Clean Water Act and the
regulations promulgated thereunder; (2) the denial of a request for an extended compliance
deadline pursuant to section 309(a)(6) of the Clean Water Act; and (3) the denial of a request for
an adjudicatory hearing to reconsider both the section 301(iX2) denial and the section 309(a)(6)
denial filed with the Regional Administrator pursuant to 40 CFR §125.36(b).
The Region denied an extension under §309(a)(6) as a discretionary enforcement action, falling
outside the adjudicatory hearing procedures. Based on Permittee's failure to satisfy a statutory
condition, the extension under §301(iX2), while potentially a matter suitable for adjudicatory
hearing procedures, was denied.
Issue:
Should a petition for review be denied when the Region's denial of the request for an
adjudicatory hearing does not appear to raise any matters which warrant review as a discretionary
matter?
Discussion:
Yes. 40 CFR 12S.36(n) governs appeals to the Administrator, but it applies only in the case of an
"Initial Decision* by the Region, which, under 125.36(1), either results from an adjudicatory
hearing or, where no adjudicatory hearing has been granted, from a decision of the Assistant
Administrator for Enforcement and General Counsel (now the Office of General Counsel) on
issues of law relied upon by the Region in rendering an Initial Decision.
As a general proposition, the regulations (40 CFR §125.36) do not provide for review by the
Administrator of an RA's denial of a request for an adjudicatory hearing. Although the
Administrator may retain an inherent right to review such denials, it is not normally exercised
unless the RA's determination appears to be clearly erroneous or involves an exercise of
discretion or policy which is important and which should be reviewed by the Administrator as a
discretionary matter.
Disposition: Petition for Review denied.
-------
40 CFR 125.36(nX4);
Standard of Review;
Permit Conditions;
Appeal No. 78-7 (August 28, 1978)
NPDES Appeal No.: 78-11
Documents Available:
Denial of Petitions for Review, November 17, 1978.
Permittee:
Washington Suburban Sanitary
2Commission, Seneca Creek Interim
Wastewater Plant
(Permit No. MD 0021491)
Background:
Petitioner seeks review of the Initial Decision concerning permit conditions for Permittee.
Issue:
Should a petition for review normally be granted when the Initial Decision is not clearly
erroneous nor does it involve an exercise of discretion or policy which is important and which
warrants review as a discretionary matter?
Discussion:
No. Regulations do not grant an automatic right to have the Initial Decision reviewed on appeal,
40 CFR 125.36(n)(4). Sfifi NPDES Appeal No. 78-7.
Disposition: Petition for Review denied.
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40 CFR T25.36(nX4);
Standard of Review;
Appeal No. 78-7 (August 28, 1978)
NPDES Appeal No.: 78-12
Documents Available:
Initial Decision, September 20, 1978.
Denial of Petition for Review, November 15, 1978.
Permittee:
Atlantic Richfield Company
(Monti Bay Terminal)
(Permit No. AK-002648-4)
(Docket No. X-WP-77-9)
Background:
The Enforcement Division Director of the Region seeks review of the RA's Initial Decision. The
Permittee opposes the petition on the grounds that it was not timely filed in accordance with 40
CFR 125.36(n)(3).
Issue:
Should the petition for review be granted when it does not set forth a sufficient showing that the
Initial Decision contained a finding of fact or a conclusion of law which is clearly erroneous or
involves an exercise of discretion or policy which is important and which should be reviewed as a
discretionary matter?
Discussion:
No. The regulations do not grant an automatic right to have the Initial Decision reviewed on
appeal, 40 CFR 125.36(n)(4). NPDES Appeal No. 78-7.
Disposition: Petition for Review denied.
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40 CFR 125.36(bXv) and
(vi) (1978);
Articulating Issues;
Section 509;
Remand;
Say of Proceedings;
Final Decisions/Judicial Review;
OGC No. 5 (April 4, 1975)
NPDES Appeal No.: 78-13
Documents Available!
Denial of Interlocutory Appeal. December 11. 1978.
Denial of Petitions for Review, June 27, 1980.
Denial of Motion for Stay, July 29, 1980.
Correspondence between CASE's Counsel and EPA, April 26. 1982.
Order to Show Cause, May 3, 1982.
fSee also. NPDE Appeals No. 81-9]
Permittee:
Public Service Company of Oklahoma
(Black Fox Station)
(Permit No. OK0034614)
Backeroun±
Following the entry of an order by the presiding officer which terminated this proceeding
without an evidentiary hearing, the RA ordered a remand to allow the introduction of evidence
on several issues proposed by Citizens' Action for Safe Energy, Inc. (CASE). Such a remand
order is interlocutory, laying the foundation for an evidentiary hearing, and is not normally
reviewable since it does not constitute an Initial Decision. Since special circumstances justifying
Administrative review were not demonstrated, petitions for review of the remand order were
denied by the Judicial Officer, acting on behalf of the Administrator.
Issue(I):
Was it improper for the RA to assume the burden of clearly articulating the disputed issues
asserted by CASE, when the public interest group failed to satisfy this burden itself?
Discussion (D:
No. EPA is the representative of the public's right to have issues brought to light in an
evidentiary hearing. The right of the public must receive active and affirmative protection at
the hands of the Agency."
Issue (ID:
Should Permittee's request for a stay of further administrative proceedings be granted?
Discussion (ID:
No. Section 509 of the CWA authorizes a party to seek judicial review of a "final" decision of the
Administrator within 90 days from the date of decision. The degree of finality needed to grant
the stay is lacking in this case, where further proceedings have been ordered by remand to
develop an evidentiary foundation for making a final decision. An appealable "final" decision
under Section 509 is a decision which finally answers the question whether a permit should be
issued or denied. No such final decision exists in this case.
Disposition: In a motion dated February 17, 1982, CASE requested that an order be entered
dismissing Permittee's application with prejudice since the Company abandoned the Black Fox
Station project. See ajgp. Appeal No. 81-9.
-------
-------
INDEX
Issues Appeal Njk
Administrative Forum 79-1, 79-2
BPT in Placer Mining Industry 79-1
Burden of Proof 79-1
Effluent Guidelines/Limitations 79-2
Interlocutory Review of Procedural Rulings Pittston, 1979
Jurisdiction 79-1
Moot Permit Conditions Hammermill, 1979
Standard of Review 79-2; Pittston, 1979
General Counsel Decisions
OGC No. 38 79-1
Regulations
40 CFR 124.85(a)(1979) 79-1
40 CFR 125.36 Pittston, 1979
40 CFR 125.36(i)(l) 79-1
40 CFR 125.36(n)(4) 79-2
CWA Section
Section 301(b)(l)(A) 79-1
Section 304(b) 79-i
Section 308 79-i
Cross-Referenced Appeals
Appeal No. 78-7 (August 28, 1978) 79-2
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KEY WORD TABLE
NPDES Anneal No./Permittee
79-1/170 Alaska Placer Mines, More or Less
(NPDES Docket No. X-WP-76-30C)
BPT in Placer Mining Industry;
Jurisdiction;
Administrative Forum;
Burden of Proof;
79-2/Nefco-FIdalgo Packing Co.
(NPDES Docket No. X-WP-78-19)
Appeal No. 78-7 (August 28, 1978);
Effluent Guidelines/Limitations;
Standard of Review;
Administrative Forum;
40 CFR 125.36(n)(4)
Sections 301(b)(l)(A), 304(b), 308;
40 CFR 125.36(i)0); OGC No. 38;
40 CFR 124.85(a)(1979)
/PIttston Company
(Permit No. ME 0022420)
40 CFR 125.36;
Interlocutory Review of Procedural Rulings;
Standard of Review
/Hammermill Paper Company
(Permit No. PA 000-0214)
Moot Permit Conditions
-------
BPT in Placer Mining Industry; Sections 301(b)(l)(A), 304(b), 308;
Jurisdiction; 40 CFR 125.36(i)(l); OGC No. 38;
Administrative Forum; 40 CFR I24.85(a)(1979)
Burden of Proof;
NPDES Appeal No.: 79-1
Documents Available:
Notice Granting Review of RA's Initial Decision, February 28. 1979.
Notice Granting Request for Extension of Time for Filing of Briefs, March 16. 1979,
Denial of Motion to Strike Questions of Law. May 2, 1979.
Denial of Request for Clarification of Service Requirements, May 2, 1979.
Decision. March 10. 1980.
Partial Modification of Remand, July 10, 1980.
Initial Decision on Remand, March 17. 1982.
Order Denying Review, September 28. 1983.
Permittee:
170 Alaska Placer Mines, More or Less
(NPDES Docket No. X-WP-76-30C)
Background:
The Alaska Miners Association (Miners), the Trustees for Alaska (Trustees), and Mr. Zemansky
seek review of the RA's Initial Decision regarding NPDES permits for approximately 170 placer
gold mines in Alaska. With one minor exception, the initial decision left the permits' numerical
effluent limitations and settling pond provisions intact, effectively declaring that settling ponds,
rather than recycling, constitute the "best practicable control technology currently available"
(BPT) for the placer mining industry. The Miners contend that the permit limitations are too
stringent. The Trustees and Mr. Zemansky allege that the permit limitations should be more
stringent, and should include limitations on total suspended solids (TSS), arsenic, and mercury,
which are significant pollutants present in waste water discharges of the placer mining industry.
The Trustees and Mr. Zemansky contend that the waste water must be recycled. Staff of Region
X argue that the RA's decision is supported by substantial evidence and should be upheld.
Issue (I):
In effectively deciding that use of settling ponds rather than recycling constitutes BPT for the
placer mining industry, did the RA misapply the rules governing the burden of proof by not
placing the burden of persuasion on the permit applicants when a disputed issue of fact existed?
Discussion (Dr.
Yes. The RA misapplied the rules governing the burden of proof by, in effect, placing the
burden of persuasion on the Trustees and Mr. Zemansky to show that recycling constituted BPT.
Consequently, the RA concluded that the "burden of proof has not been satisfied to show that
recycling is the best practicable control technology despite the fact that there is considerable
support for it." In this regard, the Region noted that the Miners could supply missing data upon
permit renewal.
The statutory scheme of the CWA places the burden of persuasion on permit applicants to
demonstrate the terms and conditions under which they propose to discharge pollutants into the
Nation's waters. No basis existed for the Region to postpone further inquiry into the extra costs
of recycling until the permits came up for renewal. To the extent that 40 CFR §125.36 (i)(I),
stating that "the burden of proof and of going forward . . . shall be upon the requestor [of the
hearing]," improperly shifts the burden of persuasion away from the permit applicant, the rule is
a nullity. Procedural regulations governing NPDES proceedings have now been revised to reflect
the proper allocation of the burden of proof. 40 CFR §124.85(a) (1979).
Issue
Was there material error in the Region's findings under CWA §301(b)(l)(A) and §304(b) regarding
the practicability of settling ponds as a treatment technology?
-------
Discussion (ID:
No. The present record indicates that settling ponds alone constitute the bare minimum for BPT.
Since settling ponds are an integral part of recycling technology, immediate implementation of
the settling pond requirements will set the stage for recycling in the event that additional
evidence upon remand supports the conclusion that recycling is the BPT.
Issue
Does the EPA lack jurisdiction over placer mining activities, based on alleged conflicts with
various statutory provisions, and has the proper forum been chosen with respect to alleged
conflicts with constitutional provisions?
Discussion (IIP:
No. The jurisdictional arguments supporting the Miners1 alleged "right to appropriate . . . water
courses for hydraulic mining with the resulting deterioration through sediment or turbidity in the
water effluent" are without foundation, and insofar as they rest on constitutional grounds, they
cannot be decided in this forum.
The Miners' statutory contentions have no merit. First, the Miners have failed to demonstrate
that The Bureau of Land Management regulations and the Mining in the Parks Act regulations
have prevented or would prevent the use of settling ponds. Second, the Miners have offered no
insights into the nature of the alleged inadequacies in EPA's consideration of these regulations,
and thus they may not complain. Third, the burden of persuasion is on the Miners to
demonstrate that their mining activities can be carried out in compliance with all applicable laws
designed to preserve natural resources.
The Miners' argument that EPA lacks jurisdiction to regulate placer mining activities through the
NPDES permit system since the mines allegedly are "nonpoint sources" is without merit.
"Identifiable points" are involved in placer mining activities, and thus they are subject to
regulation. Constitutional issues relating to the monitoring, reporting, and right of entry
requirements authorized by CWA §308, as well as arguments regarding the impairment or
condemnation of the Miners' alleged prior vested water rights, cannot be properly addressed in
this administrative forum.
Disposition: The proceeding was remanded for the limited purpose of reopening the record to
receive additional evidence on the extra costs of recycling in relationship to the effluent
reduction benefits to be achieved. On July 10, 1980, the Administrator partially modified the
remand at the request of the Trustees. They contended that a determination that settling ponds
alone constitute BPT would leave unanswered several relevant issues properly raised on appeal.
The Administrator agreed, and concluded that determinations were to be made regarding: (1) the
effluent limitations necessary to meet state water quality standards; (2) appropriate effluent
monitoring requirements in the event that the Region does not determine that zero discharge is
required; and (3) effluent limitations for TSS or turbidity, for arsenic, and for mercury based on
BPT in the event the Region does not determine that zero discharge is required. A subsequent
request for Administrative review of the decision on remand was denied.
-------
Appeal No. 78-7 (August 28, 1978);
Effluent Guidelines/Limitations;
Standard of Review;
Administrative Forum;
40 CFR 125.36Xn)(4)
NPDES Anneal No .; 79-2
Documents Available:
Initial Decision, October 16, 1979.
Denial of Petition for Review, December 4, 1979.
Permittee:
Nefco-Fidalgo Packing Co.
(NPDES Docket No. X-WP-78-19)
Background:
In seeking review of the Region's initial decision, permittee appears to be challenging the validity
of the guidelines upon which the effluent limitations in the permit are based.
Issue m:
Should the petition for review be granted when it does not set forth a sufficient showing that the
Initial Decision contained a finding of fact or a conclusion of law which is clearly erroneous or
involves an exercise of discretion or policy which is important and which should be reviewed as a
discretionary matter?
Discussion (II:
No. The regulations do not grant an automatic right to have the Initial Decision reviewed on
appeal, 40 CFR 125.3600(4). NPDES Appeal No. 78-7.
Issue fin:
May challenges regarding the validity of effluent limitation guidelines be considered in the
administrative forum?
Discussion (Til:
No. The Chief Administrative Law Judge properly held that such challenges cannot be considered
in this forum.
Disposition: Petition for Review denied, and the Initial Decision becomes the final decision of
the Administrator.
-------
40 CFR 125.36;
Interlocutory Review
of Procedural Rulings;
Standard of Review
NPDES Appeal No.:
Documents Available:
Denial of Request for Review, September 25, 1979.
fSee Also. NPDES Appeal No. 81-1]
Permittee:
Pittston Company
(Permit No. ME 0022420)
Background:
Permittee seeks review of the ALTs ruling, rendered at a prehearing conference, establishing the
hearing schedule for this proceeding. Permittee states that the schedule is "unacceptable," and
should provide for an earlier hearing date. Several environmental groups oppose this
rescheduling.
Issue:
Should an interlocutory review of a procedural ruling issued by the presiding officer during the
course of an on-going hearing be granted when no clear error or abuse of discretion has been
demonstrated?
Discussion:
No. The procedural rules governing NPDES hearings contemplate that the Administrator's
reviews ordinarily will be confined to appeals from an initial decision rendered by the Region at
the conclusion of the hearing (following certification of the record by the presiding officer). The
rules do not provide express authorization for interlocutory reviews of procedural rulings, 40
CFR §125.36. Any discretionary extension of the Administrator's inherent powers of review over
NPDES proceedings to encompass procedural rulings should only be exercised in extraordinary
circumstances where clear error or abuse of discretion can be demonstrated. No such
circumstances appear here and no factual basis is alleged by the permittee to suggest unfair
prejudice.
Disposition: Request for Review denied.
-------
Moot Permit Conditions
NFDES Docket No.!
PA-AH-0045
Documents Available:
Order on Motion to Withdraw Petition for Appeal, December 7, 1979.
Permittee:
Hammermill Paper Company
(Permit No. PA 000-0214)
Background:
Permittee filed a petition for review of an order of dismissal entered by the ALJ. Thereafter,
permittee filed a motion to withdraw its petition for review, stating, inter alia, that the permit
was near expiration; there presently is no discharge, nor will there be in the future, and; the
permit conditions appealed from are moot.
Issue:
Should the motion for withdrawal of Permittee's petition for review be granted, given that no
response or opposition to the motion, based on moot permit conditions, was received from the
Enforcement Division?
Discussion:
Yes.
Disposition: The order of dismissal by the ALJ is allowed to stand.
-------
Evidentiary Hearings;
Standard of Review;
40 CFR 124.91(a)(l)(i) and (ii) (1981);
Amended Petitions
NPDES Appeal No.: 81-13
Documents Available:
Order Declining Review, May 20, 1982.
Order Denying Application for Stay, August 4, 1982.
Permittee:
Pammlid Coal Co., Inc.,
(Permit No. WV0050911)
T & R Coal Co.,
(Permit No. WV0050920)
Lackey Coals, Inc.,
(Permit No. WV0051802)
Brooks Run Coal Co.,
(Permit No. WV0052833)
Brooks Run Coal Co.,
(Permit No. WV0052850)
Background:
Petitioners sought review of the Region's denial of their requests for an evidentiary hearing.
They amended their original petition to elaborate upon and clarify their claims.
Issue:
Should review of the denial of petitioners* request for an evidentiary hearing be granted when
petitioners have not made out a convincing case in favor of accepting review, and several issues
raised in the amended petition are actually new matters rather than clarifications of matters
raised in the original petition?
Discussion:
No. Petitions for review of NPDES permit determinations are not normally accepted unless the
permit determination is clearly erroneous or involves an exercise of discretion or policy which is
important and which should be reviewed as a discretionary matter, 40 CFR §124.91(a)(l)(i) and
(ii)(1981). The burden of
demonstrating that the permit determination should be reviewed is on the petitioners. Moreover,
to the extent that the amended petition raises new matters, it cannot be considered because it was
not filed within the 30 day time period prescribed by 40 CFR §124.91(a)(l) (1981).
Disposition: Petition for Review denied.
-------
-------
INDEX
Issues Appeal No.
Adjudicatory Hearings 80-1, 80-2
Best Available Technology Agrico, 1980
Effects of Erroneous Rulings/Interpretations 80-1, 80-2
Jurisdiction 80-3
Navigable Waters/Waters of the U.S 80-3
Non-Adversary Panel Procedures 80-5
Permit Modification 80-1, 80-2
Rights of Appeal 80-1, 80-2
Specifying Alternative Terms and Conditions 80-4
Standard of Review 80-1, 80-2, 80-3, 80-5
State Certification 80-4
General Counsel Decisions
OGC No. 38 (January 29, 1976) Agrico, 1980
OGC No. 40 (April 2, 1976) Agrico, 1980
Regulations
40 CFR Part 124 (1979) 80-1, 80-2
40 CFR Part 124 (Subpart F)(1980) 80-5
40 CFR Part 125 (1979) 80-1, 80-2
40 CFR 125.36(n) (1978) 80-3
CWA Section
Section 301 80-3
Section 304(b)(l) Agrico, 1980
Section 401 80-4
Section 402(a)(l) Agrico, 1980
Section 502(7) 80-3
Section 502(12) 80-3
Cross-Referenced Appeals
Appeal No. 78-7 (August 28, 1978) 80-3
-------
KEY WORD TABLE
NPDES Appeal No./Permittee
80-I/Pacific Pearl Seafoods
(Case No. X-WP-79-2)
Standard of Review;
Adjudicatory Hearing;
Effects of Erroneous Rulings/
Interpretations;
80-2/Dutch Harbor Seafoods, Inc.
(Case No. X-WP-79-1)
Standard of Review;
Adjudicatory Hearings;
Erroneous Rulings/Interpretations;
80-3/Kerr-McGee Nuclear Corp.
Church Rock Facility
(Permit No. NM 0020524)
Standard of Review;
40CFR 125.36(n)(1978);
Section 502(7) and (12);
Appeal No. 78-7 (August 28, 1978)
80-4/Direct Marketing Co.
(Permit No. WV0034797)
Specifying Alternative Terms and Conditions;
Section 401;
State Certification
80-5/Cincinnati Gas & Electric Co.,
East Bend Station, Units 1 and 2
(Permit No. KY0040444)
Non-Adversary Panel Procedures;
Standard of Review;
40 CFR Part 124 (Subpart F)(1980)
/Agrico Chemical Co.
(Permit No. OK-0029149)
Best Available Technology;
Section 402 (a)(l);
Section 304 (b)(l);
40 CFR Part 124(1979);
40 CFR Part 125 (1979);
Permit Modification;
Rights of Appeal
40 CFR Part 124 (1979);
40 CFR Part 125 (1979);
Permit Modification;
Rights of Appeal
Jurisdiction;
Navigable Waters/Waters of the U.S;
Section 301;
OGC No. 38 (January 29, 1976);
OGC No. 40 (April 2, 1976)
-------
Standard of Review;
Adjudicatory Hearings;
Effects of Erroneous Rulings/
Interpretations;
40 CFR Part 124 (1979);
40 CFR Part 125 (1979);
Permit Modification;
Rights of Appeal
NPDES Appeal No.: 80-1
Documents Available:
Denied of Petition for Review, February 25. 1980.
Denial of Motion to Reconsider Administrator's Denial of Petition for Review, April 15, 1980.
Permittee;
Pacific Pearl Seafoods
(Case No. X-WP-79-2)
Background:
Permittee seeks review of the RA's denial of their request for an adjudicatory hearing. Permittee
had requested the hearing to contest the RA's earlier denial of a request to modify its permit.
Issue m:
Should the petition for review be granted?
Discussion (I):
No. The events in this case span a period of time when both new and superseded regulations
were effective with respect to the permit. Neither the new nor superseded regulations authorize
the type of review by the Administrator which Permittee requests. Under the new regulations,
40 CFR §§124.71 and 124.111 (1979), evidentiary hearings are limited to controversies involving
the issuance of permits and not to controversies involving the denial of requests for modifications
of previously issued permits. Likewise, under the superseded regulations, 40 CFR §125.36(1)
(1978), review by the Administrator is restricted to review of an RA's Initial Decision resulting
from an adjudicatory hearing or, if no adjudicatory hearing has been held, from a decision of the
General Counsel on issues of law relied upon by the RA in rendering an Initial Decision. No
Initial Decision results from the denial of a request for an adjudicatory hearing.
Issue (ID:
Was the denial of an appeal to the Administrator prejudicial where Permittee had relied on the
RA's advice that a route of appeal existed?
Discussion (II):
No. The motion for reconsideration was denied. The Chief Judicial Officer found that the
Administrator has authority to correct an erroneous ruling or interpretation respecting the
existence or non-existence of a right of appeal. The Chief Judicial Officer also found, however,
that such claims of prejudice may warrant extending the time for taking any court appeal of the
RA's decision to the date of the Chief Judicial Officer's denial of the petition for review, rather
than the date on which the RA denied the request for a hearing.
Disposition: The Administrator denied the Petition for Review and later denied a motion for
reconsideration of the denial.
-------
Standard of Review;
Adjudicatory Hearings;
Erroneous Rulings/Interpretations;
40 CFR Part 124 (1979);
40 CFR Part 125 (1979);
Permit Modification;
Rights of Appeal
NPDES Appeal No.: 80-2
Documents Available:
Denial of Petition for Review, March 10, 1980.
Denial of Motion to Reconsider Administrator's Denial of Petition for Review, April 16, 1980,
Permittee:
Dutch Harbor Seafoods, Inc.
(Case No. X-WP-79-1)
Background:
Permittee seeks review of the RA's denial of it's request for an adjudicatory hearing. Permittee
had requested the hearing to contest the RA's earlier denial of a request to modify its permit.
Issue flV
Should the petition for review be granted?
Discussion (l\.
No. The events in this case span a period of time when both new and superseded regulations
were effective with respect to the permit. Neither the new nor superseded regulations authorize
the type of review by the Administrator which Permittee requests. Under the new regulations,
40 CFR §§124.71 and 124.111 (1979), evidentiary hearings are limited to controversies involving
the issuance of permits and not to controversies involving the denial of requests for modifications
of previously issued permits. Likewise, under the superseded regulations, 40 CFR §125.36(1)
(1978), review by the Administrator is restricted to review of an RA's Initial Decision resulting
from an adjudicatory hearing or, if no adjudicatory hearing has been held, from a decision of the
General Counsel on issues of law relied upon by the RA in rendering an Initial Decision. No
Initial Decision results from the denial of a request for an adjudicatory hearing.
Issue fin:
Was the denial of an appeal to the Administrator prejudicial where Permittee had relied on the
RA's advice that a route of appeal existed?
Discussion fill:
No. The motion for reconsideration was denied. The Chief Judicial Officer found that the
Administrator has authority to correct an erroneous ruling or interpretation respecting the
existence or non-existence of a right of appeal. The Chief Judicial Officer also found, however,
that such claims of prejudice may warrant extending the time for taking any court appeal of the
RA's decision to the date of the Chief Judicial Officer's denial of the petition for review, rather
than the date on which the RA denied the request for a hearing.
Disposition: The Administrator denied the Petition for Review and later denied a motion for
reconsideration of the denial.
-------
Standard of Review; Jurisdiction;
40 CFR 125.36(n) (1978); Navigable Waters/Waters of the U.S.;
Section 502(7) and (12); Section 301;
Appeal No. 78-7 (August 28, 1978)
NPDES Appeal No.: 80-3
Documents Available:
Denial of Petition for Review, May 15, 1980.
Permittee:
Kerr-McGee Nuclear Corp.
Church Rock Facility
(Permit No. NM 0020524)
Background:
Permittee seeks review of the Region's decision that the facility's discharges are subject to the
NPDES permit requirements of the CWA. Permittee argues that EPA jurisdiction under CWA is
confined to discharges into navigable-in-fact bodies of water and their tributaries.
Issue (H:
Did the Regional Judicial Officer err by not applying the navigable-in-fact test and by omitting
Permittee's proposed findings of fact concerning the navigability of the receiving water in
question?
Discussion (II:
No. The navigable-in-fact test has no applicability to EPA's jurisdiction under the CWA. No
error could result from omitting findings of fact which merely support the conclusion that the
receiving water in question is not navigable-in-fact. Under §301 of CWA, it is unlawful for any
person to discharge any pollutant without an NPDES permit. The term "discharge of a pollutant"
is defined in §502(12) as "any addition of any pollutant to navigable waters from any point
source." The term "navigable waters" is defined in §502(7) as "waters of the United States."
According to the legislative history of CWA, the term "navigable waters" should be given the
broadest constitutional interpretation under the Commerce Clause, and thus includes every creek,
stream, river or body of water that in any way affects interstate commerce. Therefore,
"navigable waters" extends to waters non-navigable in the traditional sense.
issue (II):
Should the Petition for Review be granted?
Discussion (ID:
No. A Petition for Review is not normally accepted unless the Initial Decision is clearly
erroneous or involves an exercise of discretion or policy which is important and should be
reviewed as a discretionary matter. 40 CFR 125.36(n)(3), NPDES Appeal No. 78-7.
Disposition: Petition for Review denied.
-------
Specifying Alternative Terms and Conditions;
Section 401;
State Certification
NPDES Appeal No.: 80-4
Documents Available:
Notice of Appeal, March 31, 1980.
Petition for Review, March 31, 1980.
Order, May 16, 1980.
Permittee:
Direct Marketing Co.
(Permit No. WV0034797)
Background:
Permittee sought review of the RA's denial of Permittee's request for an evidentiary hearing. The
Region found that Permittee's request failed to sufficiently specify alternative terms and
conditions to those terms and conditions being challenged, and also found that the discharge
limitations to which the Permittee objected were based on State certification pursuant to §401 of
CWA.
Disposition: Permittee withdraws its Notice of Appeal and Petition for Review.
-------
Non-Adversary Panel Procedures;
Standard of Review;
40 CFR Part 124 (Subpart F)(1980)
NPDES Permit No.: 80-5
Documents Available:
Order Declining Review of Recommended Decision, October 1, 1980.
Permittee:
Cincinnati Gas & Electric Co.,
East Bend Station, Units 1 and 2
(Permit No. KY0040444)
Background:
Joint public notice of the proposed issuance of a new source NPDES permit for Permittee's
facility was issued, giving interested parties the opportunity to comment and to request a panel
hearing on the permit. No request for such a hearing was filed. In response to comments, a
revised draft new source permit was forwarded to the Administrator as the Region's
recommended decision. The non- adversary panel procedures at 40 CFR Part 124 (Subpart
F}(1980) provide that the recommended decision becomes the final decision of the Agency unless
the Administrator elects to review it on his own initiative.
Issue:
Under the non-adversary panel procedures, is the appeal of a recommended decision permitted
when no request for a panel hearing is filed?
Discussion:
No. Under the non-adversary procedures, a request for a panel hearing is a prerequisite to
exercising a right of appeal to the Administrator.
Disposition: Petition for Review denied.
-------
Best Available Technology;
Section 304 (b)(l);
Section 402 (a)(l);
OGC No. 38 (January 29, 1976);
OGC No. 40 (April 2, 1976)
NPDES Appeal No.:
Documents Available:
Initial Decision, February 25, 1980.
Permittee:
Agrico Chemical Company
(Permit No. OK0029149)
Background:
Permittee argues that a permit requirement restricting the pH level of its discharge to fall within
the range of 6.0 to 9.0 at all times is both too stringent and inconsistent with the Agency's duty to
write permits with parameters achievable by application of the best practical control technology
currently available.
Issue:
When considering effluent limitation or reduction attainable by application of the best practical
control technology, is EPA obligated as a matter of law to account for discharge components
excluded from the guidelines?
Discussion:
Yes. EPA has erroneously assumed that consideration of the level of technology required to
achieve the pH restrictions was rendered unnecessary. Allowances for components excluded from
the guidelines do not require the permittee to demonstrate that the inability to comply with
permit conditions is attributable to those components.
Disposition: The permit is modified to meet the requirements of section 402(a)(l) for the
application of the best practical technology.
-------
-------
INDEX
Issues Appeal No.
Adjudicatory Hearings 80-1, 80-2
Best Available Technology Agrico, 1980
Effects of Erroneous Rulings/Interpretations 80-1, 80-2
Jurisdiction 80-3
Navigable Waters/Waters of the U.S 80-3
Non-Adversary Panel Procedures 80-5
Permit Modification 80-1, 80-2
Rights of Appeal 80-1, 80-2
Specifying Alternative Terms and Conditions 80-4
Standard of Review 80-1, 80-2, 80-3, 80-5
State Certification 80-4
General Counsel Decisions
OGC No. 38 (January 29, 1976) Agrico, 1980
OGC No. 40 (April 2, 1976) Agrico, 1980
Regulations
40 CFR Part 124 (1979) 80-1, 80-2
40 CFR Part 124 (Subpart F)(1980) 80-5
40 CFR Part 125 (1979) 80-1, 80-2
40 CFR 125.36(n) (1978) 80-3
CWA Section
Section 301 80-3
Section 304(b)(l) Agrico, 1980
Section 401 80-4
Section 402(a)(l) Agrico, 1980
Section 502(7) 80-3
Section 502(12) 80-3
Cross-Referenced Appeals
Appeal No. 78-7 (August 28, 1978) 80-3
-------
KEY WORD TABLE
NPDES Anneal No./Permittee
80-1 /Pacific Pearl Seafoods
(Case No. X-WP-79-2)
Standard of Review;
Adjudicatory Hearing;
Effects of Erroneous Rulings/
Interpretations;
80-2/Dutch Harbor Seafoods, Inc.
(Case No. X-WP-79-1)
Standard of Review;
Adjudicatory Hearings;
Erroneous Rulings/Interpretations;
80-3/Kerr-McGee Nuclear Corp.
Church Rock Facility
(Permit No. NM 0020524)
Standard of Review;
40 CFR 125.36(n) (1978);
Section 502(7) and (12);
Appeal No. 78-7 (August 28, 1978)
80-4/Direct Marketing Co.
(Permit No. WV0034797)
Specifying Alternative Terms and Conditions;
Section 401;
State Certification
80-5/Cincinnati Gas & Electric Co.,
East Bend Station, Units 1 and 2
(Permit No. KY0040444)
Non-Adversary Panel Procedures;
Standard of Review;
40 CFR Part 124 (Subpart F)(1980)
/Agrico Chemical Co.
(Permit No. OK-0029149)
Best Available Technology;
Section 402 (a)(l);
Section 304 (b)(l);
40 CFR Part 124 (1979);
40 CFR Part 125(1979);
Permit Modification;
Rights of Appeal
40 CFR Part 124(1979);
40 CFR Part 125 (1979);
Permit Modification;
Rights of Appeal
Jurisdiction;
Navigable Waters/Waters of the U.S;
Section 301;
OGC No. 38 (January 29, 1976);
OGC No. 40 (April 2, 1976)
-------
Standard of Review; 40 CFR Part 124 (1979);
Adjudicatory Hearings; 40 CFR Part 125 (1979);
Effects of Erroneous Rulings/ Permit Modification;
Interpretations; Rights of Appeal
NPDES Appeal No.: 80-1
Documents Available:
Denial of Petition for Review, February 25, 1980.
Denial of Motion to Reconsider Administrator's Denial of Petition for Review, April 15, 1980.
Permittee:
Pacific Pearl Seafoods
(Case No. X-WP-79-2)
Background:
Permittee seeks review of the RA's denial of their request for an adjudicatory hearing. Permittee
had requested the hearing to contest the RA's earlier denial of a request to modify its permit.
Issue (I):
Should the petition for review be granted?
Discussion (I):
No. The events in this case span a period of time when both new and superseded regulations
were effective with respect to the permit. Neither the new nor superseded regulations authorize
the type of review by the Administrator which Permittee requests. Under the new regulations,
40 CFR §§124.71 and 124.111 (1979), evidentiary hearings are limited to controversies involving
the issuance of permits and not to controversies involving the denial of requests for modifications
of previously issued permits. Likewise, under the superseded regulations, 40 CFR §125.36(1)
(1978), review by the Administrator is restricted to review of an RA's Initial Decision resulting
from an adjudicatory hearing or, if no adjudicatory hearing has been held, from a decision of the
General Counsel on issues of law relied upon by the RA in rendering an Initial Decision. No
Initial Decision results from the denial of a request for an adjudicatory hearing.
Issue (ID:
Was the denial of an appeal to the Administrator prejudicial where Permittee had relied on the
RA's advice that a route of appeal existed?
Discussion
No. The motion for reconsideration was denied. The Chief Judicial Officer found that the
Administrator has authority to correct an erroneous ruling or interpretation respecting the
existence or non-existence of a right of appeal. The Chief Judicial Officer also found, however,
that such claims of prejudice may warrant extending the time for taking any court appeal of the
RA's decision to the date of the Chief Judicial Officer's denial of the petition for review, rather
than the date on which the RA denied the request for a hearing.
Disposition: The Administrator denied the Petition for Review and later denied a motion for
reconsideration of the denial.
-------
Standard of Review; 40 CFR Part 124 (1979);
Adjudicatory Hearings; 40 CFR Part 125 (1979);
Erroneous Rulings/ Interpretations; Permit Modification;
Rights of Appeal
NPDES Appeal No.: 80-2
Documents Available:
Denial of Petition for Review, March 10, 1980.
Denial of Motion to Reconsider Administrator's Denial of Petition for Review, April 16, 1980.
Permittee:
Dutch Harbor Seafoods, Inc.
(Case No. X-WP-79-1)
Background:
Permittee seeks review of the RA's denial of it's request for an adjudicatory hearing. Permittee
had requested the hearing to contest the RA's earlier denial of a request to modify its permit.
Issue (I):
Should the petition for review be granted?
Discussion (I):
No. The events in this case span a period of time when both new and superseded regulations
were effective with respect to the permit. Neither the new nor superseded regulations authorize
the type of review by the Administrator which Permittee requests. Under the new regulations,
40 CFR §§124.71 and 124.111 (1979), evidentiary hearings are limited to controversies involving
the issuance of permits and not to controversies involving the denial of requests for modifications
of previously issued permits. Likewise, under the superseded regulations, 40 CFR §125.36(1)
(1978), review by the Administrator is restricted to review of an RA's Initial Decision resulting
from an adjudicatory hearing or, if no adjudicatory hearing has been held, from a decision of the
General Counsel on issues of (aw relied upon by the RA in rendering an Initial Decision. No
Initial Decision results from the denial of a request for an adjudicatory hearing.
Issue
Was the denial of an appeal to the Administrator prejudicial where Permittee had relied on the
RA's advice that a route of appeal existed?
Discussion (ID:
No. The motion for reconsideration was denied. The Chief Judicial Officer found that the
Administrator has authority to correct an erroneous ruling or interpretation respecting the
existence or non-existence of a right of appeal. The Chief Judicial Officer also found, however,
that such claims of prejudice may warrant extending the time for taking any court appeal of the
RA's decision to the date of the Chief Judicial Officer's denial of the petition for review, rather
than the date on which the RA denied the request for a hearing.
Disposition: The Administrator denied the Petition for Review and later denied a motion for
reconsideration of the denial.
-------
Standard of Review; Jurisdiction;
40 CFR 125.36(n) (1978); Navigable Waters/Waters of the U.S.;
Section 502(7) and (12); Section 301;
Appeal No. 78-7 (August 28, 1978)
NPDES Appeal No.: 80-3
Documents Available:
Denial of Petition for Review, May 15, 1980.
Permittee:
Kerr-McGee Nuclear Corp.
Church Rock Facility
(Permit No. NM 0020524)
Background:
Permittee seeks review of the Region's decision that the facility's discharges are subject to the
NPDES permit requirements of the CWA. Permittee argues that EPA jurisdiction under CWA is
confined to discharges into navigable-in-fact bodies of water and their tributaries.
Issue fit:
Did the Regional Judicial Officer err by not applying the navigable-in-fact test and by omitting
Permittee's proposed findings of fact concerning the navigability of the receiving water in
question?
Discussion fD:
No. The navigable-in-fact test has no applicability to EPA's jurisdiction under the CWA. No
error could result from omitting findings of fact which merely support the conclusion that the
receiving water in question is not navigable-in-fact. Under §301 of CWA, it is unlawful for any
person to discharge any pollutant without an NPDES permit. The term "discharge of a pollutant"
is defined in §502(12) as "any addition of any pollutant to navigable waters from any point
source." The term "navigable waters" is defined in §502(7) as "waters of the United States."
According to the legislative history of CWA, the term "navigable waters" should be given the
broadest constitutional interpretation under the Commerce Clause, and thus includes every creek,
stream, river or body of water that in any way affects interstate commerce. Therefore,
"navigable waters" extends to waters non-navigable in the traditional sense.
Issue fin:
Should the Petition for Review be granted?
Discussion fll):
No. A Petition for Review is not normally accepted unless the Initial Decision is clearly
erroneous or involves an exercise of discretion or policy which is important and should be
reviewed as a discretionary matter. 40 CFR 125.36(n)(3), NPDES Appeal No. 78-7.
Disposition: Petition for Review denied.
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Specifying Alternative Terms and Conditions;
Section 401;
State Certification
NPDES Appeal No.: 80-4
Documents Available:
Notice of Appeal, March 31, 1980.
Petition for Review, March 31, 1980.
Order, May 16, 1980.
Permittee:
Direct Marketing Co.
(Permit No. WV0034797)
Background:
Permittee sought review of the RA's denial of Permittee's request for an evidentiary hearing. The
Region found that Permittee's request failed to sufficiently specify alternative terms and
conditions to those terms and conditions being challenged, and also found that the discharge
limitations to which the Permittee objected were based on State certification pursuant to §401 of
CWA.
Disposition: Permittee withdraws its Notice of Appeal and Petition for Review.
-------
Non-Adversary Panel Procedures;
Standard of Review;
40 CFR Part 124 (Subpart F)(1980)
NPDES Permit No.: 80-5
Documents Available:
Order Declining Review of Recommended Decision, October 1, 1980.
Permittee:
Cincinnati Gas & Electric Co.,
East Bend Station, Units 1 and 2
(Permit No. KY0040444)
Background:
Joint public notice of the proposed issuance of a new source NPDES permit for Permittee's
facility was issued, giving interested parties the opportunity to comment and to request a panel
hearing on the permit. No request for such a hearing was filed. In response to comments, a
revised draft new source permit was forwarded to the Administrator as the Region's
recommended decision. The non-adversary panel procedures at 40 CFR Part 124 (Subpart
F)(I980) provide that the recommended decision becomes the final decision of the Agency unless
the Administrator elects to review it on his own initiative.
Issue;
Under the non-adversary panel procedures, is the appeal of a recommended decision permitted
when no request for a panel hearing is filed?
Discuss ion;
No. Under the non-adversary procedures, a request for a panel hearing is a prerequisite to
exercising a right of appeal to the Administrator.
Disposition: Petition for Review denied.
-------
Best Available Technology;
Section 304 (bXD;
Section 402 (a)(l);
OGC No. 38 (January 29, 1976);
OGC No. 40 (April 2, 1976)
NPDES Appeal No.:
Documents Available:
Initial Decision, February 25, 1980.
Permittee:
Agrico Chemical Company
(Permit No. OK.0029149)
Background:
Permittee argues that a permit requirement restricting the pH level of its discharge to fall within
the range of 6.0 to 9.0 at all times is both too stringent and inconsistent with the Agency's duty to
write permits with parameters achievable by application of the best practical control technology
currently available.
Issue:
When considering effluent limitation or reduction attainable by application of the best practical
control technology, is EPA obligated as a matter of law to account for discharge components
excluded from the guidelines?
Discussion:
Yes. EPA has erroneously assumed that consideration of the level of technology required to
achieve the pH restrictions was rendered unnecessary. Allowances for components excluded from
the guidelines do not require the permittee to demonstrate that the inability to comply with
permit conditions is attributable to those components.
Disposition: The permit is modified to meet the requirements of section 402(a)(l) for the
application of the best practical technology.
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INDEX
Issues Appeal No.
Administrative Forum 81-6
Amended Petitions 81-13
Bypass Provisions 81-6
Consent Decree 81-8
Consolidated Permit Regulations 81-11
Cost Benefit Hearing 81-2
Credits 81-6
Deferrals 81-10
Denial of Evidentiary Hearing 81-5
Discharging Effluent 81-8
Effluent Limitations 81-12
Effluent Limitations/Calculation 81-6
Environmental Impact Statement ' 81-3
Equal Access to Justice Act 81-9
Evidentiary Hearings 81-7, 81-13
Formal/Informal Appeals 81-11
Fundamentally Different Factors Variance 81-11
General Permit Conditions/Challenges 81-6
Jurisdiction 81-6
Modification of Effluent Limitations 81-2
Monitoring Provisions 81-6
New Dischargers 81-2
New Evidence 81-1
Procedural Issues 81-11
Raising Issues 81-12
Reopening Record 81-1
Review of Regulations 81-6
Standard of Review 81-3, 81-13
State Certification 81-2
Waste Treatment Management Plans 81-8
Withdrawal of Permit Applications 81-9
General Counsel Decisions
OGC No. 3 (March 6, 1975) 81-6
OGC No. 23 (July 23, 1975) 81-6
OGC No. 37 81-2
OGC No. 58 (March 29, 1977) 81-2
Regulations
40 CFR 122.3 (1980) 81-2
40 CFR 122.3(u) (1979) 81-2
40 CFR 122.63(h) (1980) 81-6
40 CFR Part 124 81-6
40 CFR 124.5(b) 81-11
40 CFR 124.6 l(e)( 1979) 81-2
40 CFR 124.64 81-11
40 CFR 124.73(a)(l980) 81-12
40 CFR 124.73(c)(4)(1980) 81-12
40 CF40 CFR 124.91(1980) 81-1, 81-10
40 CFR 124.91(aXl)(i)0981) 81-13
40 CFR 124.91(a)(lXii)(I981) 81-13
40 CFR 124.91(c)(l)(1980) 81-5
40 CFR J25.36(n)(4X1978) 81-4
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CWA Section
Section 208(b) gj.g
Section 208(e) 81-8
Section 301(b)(l)(C) 81-2
Section 302 81-2
Section 401 81-2
Section 402(a)(l) 81-3, 81-6
Section 509(b) 81-6
Other Citations
NEPA §102(2)(C) 81-3
5 USC 504 81-9
45 Fed. Reg. 33504 (May 19, 1980) 81-5
Endangered Species Act, 16 U.S.C. 1536(a)(2) 81-1
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KEY WORD TABLE
NPDES Appeal No./Permittee
81 -I/The Pittston Company
(Permit No. ME0022420)
Reopening Record;
New Evidence;
40CFR 124.91 (1980);
Endangered Species Act,
16 U.S.C. §1536(a)(2)
81-2/Pratt & Whitney Aircraft Group,
United Technologies Corporation
North Berwick, Maine
(Permit No. ME0022764)
New Dischargers;
Modification of Effluent
Limitations;
Section 30l(b)(l)(C);
40 CFR 122.3(u)(1979) and
122.3 (1980);
40 CFR 124.61(e)(1979);
81-3/LouisvilIe Gas & Electric Company
Trimble County Power Plant
(Permit No. KY0041971)
Section 402(a)(l);
NEPA §102(2)(C);
Environmental Impact Statement;
Standard of Review
81-4/Ranchers Exploration and Development Corporation
Johnny M Mine, New Mexico
(Permit No. NM 0026573)
40 CFR 125.36(n)(4) (1978)
81-5/Enviro Energy, Inc.
Mine Nos. 1 and 2
Existing Source Determination
(Permit Nos. WV 0048895 and WV 0048909)
40 CFR 124.9 l(c)( 1)(1980);
45 Fed. Reg. 33504 (May 19, 1980);
Denial of Evidentiary Hearing
Section 401;
OGC No. 58 (March 29, 1977);
Cost Benefit Hearing;
Section 302;
OGC No. 37;
State Certification
-------
81-6/ITT Rayonier Inc.
Port Angeles, Washington
(Permit No, WA-000079-5)
Monitoring Provisions;
Bypass Provisions;
OGC No. 3 (March 6, 1975);
OGC No. 23 (July 23, 1975);
Jurisdiction;
40 CFR I22.63(h)(1980);
40 CFR Part 124;
81-7/Alaska Lumber and Pulp Company, Inc.
(Permit No. WA-000079-5)
Evidentiary Hearing
81-8/Pima County, Arizona
Mt. Lemmon Treatment Plant
(Permit No. AZ0020028)
Section 208(b);
Section 208(e);
Discharging Effluent;
81-9/Public Service Company of Oklahoma
Withdrawal of Permit Applications;
Equal Access to Justice Act;
5 USC 504
81-10/Louisiana-Pacific Corporation
Ketchikan Division
Ketchikan, Alaska Pulp Mill
(Permit No. AK-000092-2)
40 CFR 124.91 (1980);
Deferrals
81-11/Union Electric Co.
(Permit No. MO-009800I)
Fundamentally Different
Factors Variance;
Procedural Issues;
Formal/Informal Appeals;
81-12/Towns of Webster and Dudley, Massachusetts
(Webster Permit No. MA0100439)
(Dudley Permit No. MA0100706)
Effluent Limitations;
Raising Issues;
40 CFR 124.73(a)(1980);
40 CFR 124.73(c)(4) (1980)
General Permit Conditions/
Challenges;
Review of Regulations;
Administrative Forum;
Effluent Limitations/Calculation;
Credits;
Section 402(a)(D;
Section 509(b)
Waste Treatment Management
Plans;
Consent Decree
Consolidated Permit
Regulations;
40 CFR I24.5(b);
40 CFR 124.64
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81-13/Pammlid Coal Co., Inc., (Permit No. WV0050911)
T & R Coal Co., (Permit No. WV0050920)
Lackey Coals, Inc., (Permit No. WV0051802)
Brooks Run Coal Co., (Permit No. WV0052833)
Brooks Run Coal Co., (Permit No. WV0052850)
Evidentiary Hearings;
Standard of Review;
40 CFR 124.9l(a)(l)(i) and (ii) (1981);
Amended Petitions
-------
Reopening Record;
New Evidence;
40 CFR 124.91 (1980);
Endangered Species Act;
16 U.S.C. §1536(a)(2)
NPDES Aooeal No.: 81-1
Documents Available:
Initial Decision, January 13, 1981
Extensions of Time. January 16. 19, 21. 22. 1981.
Clarification of Order Extending Time to File Petition for Review, January 22. 1981.
Order Granting Motion to Process Appeals Under 40 CFR 124.91 (1980). February 18. 1981.
Canadian Embassy Note No. 101. February 26. 1981. Filed in Record, March 5. 1981.
Order Denying Motion to Reopen Record, May 7, 1981.
Order Denying Petitions for Review of Initial Decision, May 7, 1981.
[See Also. Pittston, 1979]
Permittee;
The Pittston Company
(Permit No. ME0022420)
Background:
Permittee sought an NPDES permit for its proposed oil refinery and marine terminal to be
constructed at Eastport, ME. An evidentiary hearing on the permit was held, and the ALJ issued
an Initial Decision concluding that the proposed facility was not likely to jeopardize the existence
of a population of right whales. The ALJ held that therefore, the NPDES permit could be issued
and would satisfy the Endangered Species Act, 16 U.S.C. §1536(a)(2).
The National Oceanic and Atmospheric Administration and the New England Fishery
Management Council (hereafter collectively referred to as "NOAA") request reopening the record
of this proceeding to receive a scientific study which they believe is "newly discovered" evidence.
NOAA contends that this new evidence supports its position that granting the permit will not
enable EPA to insure that such action is not likely to jeopardize the continued existence of the
endangered right whale as required by §7(a)(2) of the Endangered Species Act, 16 U.S.C.
§1536(a)(2).
issue:
Is the scientific study of such probative force that its consideration would be likely to materially
alter the result reached in the Initial Decision, warranting the reopening of the record of this
proceeding?
Discussion:
No. The scientific study is immaterial to the presiding officer's finding that there is no
reasonable likelihood that construction and operation of the proposed oil refinery will jeopardize
the continued existence of the right whale. Consequently, the disclosure in the scientific reports
of an increase in the relative abundance of right whales has no material bearing on the result
reached in the Initial Decision, and the motion to reopen the record is denied.
Disposition: Motion to Reopen Record denied.
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New Dischargers;
Modification of Effluent
Limitations;
Section 301(b)(l)(C);
40CFR 122.3(u)(1979)and
122.3 (1980);
40 CFR 124.6I(e)(I979);
Section 401;
OGC No. 58 (March 29, 1977);
Cost Benefit Hearing;
Section 302;
OGC No. 37;
State Certification
NPDES Appeal No.: 81-2
Documents Available:
Decision on Petition for Review, March 18, 1983.
Permittee:
Pratt & Whitney Aircraft Group,
United Technologies Corporation
North Berwick, Maine
(Permit No. ME0022764)
Background:
Permittee seeks review of the Region's decision denying a request for an evidentiary hearing to
contest certain permit provisions. The relief sought by Permittee is a relaxation of limitations on
discharges of cadmium, deletion of the formula which limits the amount of process wastewater
that can be discharged in relationship to the flow of the river, and modification of the
monitoring requirements to basically conform to the requirements of a state issued permit
covering the same discharges. Pending completion of the hearing, Permittee seeks a stay of the
cadmium limitation, the formula, and the monitoring requirements, to the extent the latter were
more onerous than monitoring requirements in the state permit.
Issue (I):
Did the Region, in denying the hearing request which was made pursuant to 40 CFR 124.6l(e)
and construed as contingent upon a finding that the facility was an existing source, properly
conclude that the facility was a new discharger rather than an existing source?
Discussion CD:
Yes. The regulations define the term "new discharger" as follows — Any building, structure,
facility, or installation: (a)(l) from which there is or may be a new or additional "discharge of
pollutants" at a "site" at which on October 18, 1972 it had never discharged pollutants; and (2)
which has never received a finally effective NPDES "permit" for discharges at that site; and (3)
which is not a "new source." 40 CFR §122.3 (1980). In contrast to prior occupants of the site,
Permittee proposes to discharge 700,000 gpd of process wastewater from its newly constructed
facility, and the discharges include high concentrations of heavy metals. Permittee's discharges
are completely different from both a quantitative and qualitative perspective. Thus, they are
"new or additional discharges of pollutants" as those terms are used in paragraph (1) of the
definition.
EPA concedes that there have been finally effective NPDES permits issued for discharges of
pollutants at the site, and it seems likely that pollutants were discharged from the facility
sometime prior to October 18, 1972. Nonetheless, to conclude from these facts that the facility is
not a new discharger is contrary to the intent of the definition, as is apparent from an
examination of the regulation's background and the preamble to the final rule. Where operations
conducted in a facility have ceased completely, followed by a reopening of the facility for the
purpose of conducting wholly unrelated operations that result in discharges having no connection
with former operations, a new permit application must be made. The discharger is not credited
with "existing source" status simply because an NPDES permit had been issued at sometime in the
past for discharges from the site.
Issue (II):
Was it reasonable for EPA to construe the hearing request, made "pursuant to 40 CFR
124.6I(e)(1979)," as having been made contingent upon Permittee's being characterized as an
-------
existing source, and thus to deny the hearing request since the facility was characterized as a new
discharger?
Discussion (ID:
Yes. The distinction between "new discharger" and "existing source" has important practical
consequences: an "existing source" may continue its discharges pending completion of an
evidentiary hearing, while a "new discharger" is barred from discharging any pollutants until all
disputed terms of the permit are completely and finally resolved. By invoking 40 CFR 124.6 1 (e),
rearguing the merits of its claimed status as an existing source, and asserting that it would be
improper for EPA not to stay the contested provisions of the permit, Permittee sought to
legitimize its discharges while its request for an evidentiary hearing was under review. However,
the provision itself merely describes the qffecjs of a request for an evidentiary hearing if the
permit application is for an existing source and the hearing request is subsequently granted. If
these conditions are not present, nothing can be gained by citing the provision in a hearing
request.
Issue
Did the Region's revisions of the permit, requiring more stringent effluent limitations than those
certified by State authorities under CWA §401, constitute a rejection of requirements in the State
certification?
Discussion (III):
No. The Region properly exercised its authority under §301(b)(l)(C) to impose more stringent
effluent limitations in the permit, notwithstanding the previous certification of less stringent
water quality related effluent limitations by the State under §401. EPA's duty under §401 to
defer to considerations of State law is intended to prevent EPA from relaxing any requirements,
limitations, or conditions imposed by State law.
Issue
Did the Region properly deny a cost benefit hearing under §302 on the grounds that, inter alia.
§302 was inapplicable?
Discussion (IV):
Yes. CWA §302(a) refers to §301(b)(2), which calls for technology based effluent limitations to
be met by July 1, 1984 based upon "the best available technology economically achievable" (BAT).
CWA §302 does not come into play unless the Administrator determines that it is necessary to
impose more stringent effluent limitations because applicable BAT limitations under §301(b)(2)
will interfere with the 1983 "interim" goal of water quality for a specific portion of the navigable
waters in question. §302 was inapplicable in this instance because EPA had issued effluent
limitations under CWA §301(b)(l)(C), not §301(b)(2).
Disposition: Denial of Hearing Request affirmed.
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NPDES Appeal No.: 81-3
Section 402(a)(I);
NEPA §102(2)(C);
Environmental Impact Statement;
Standard of Review
Documents Available:
Order, January 7, 1981.
Order Granting Review of Initial Decision, February 6, 1981.
Order Extending Time to File Brief on Appeal, March 2, 1981.
Order Granting Motion for Enlargement of Time to File Brief, March 31, 1981.
Final Decision, September 24, 1981.
Permittee:
Louisville Gas & Electric Company
Trimble County Power Plant
(Permit No. KY004197I)
Background:
Permittee sought an NPDES permit for a proposed power plant to be constructed in Trimble
County, K.Y. Petitioner, a local public interest group, appealed from an Initial Decision in which
the ALJ ruled that an environmental impact statement (EIS) prepared by EPA fully satisfied the
requirements of NEPA in connection with the issuance of the NPDES permit. Petitioner
contended that EPA gave inadequate consideration to the need for and alternatives to the facility
under NEPA §102(2)(C).
Issue (I):
Did the ALJ err in dismissing petitioner's contention that the EIS was defective as a result of
EPA's alleged failure to give adequate consideration to the need for and alternatives to the
facility, as required by NEPA §102(2)(Q?
Discussion (I):
No. EPA was under no obligation to consider the data on actual demand for electricity during the
summer of 1978 before releasing the EIS in final form. This data was not reasonably available to
the Agency before the Final EIS determination was made. The Agency's actions under NEPA are
to be judged by the information that is reasonably available to the Agency, taking into account
its materiality, and the setting in which it is supposed to have come to the Agency's attention.
Issue (ID:
Was the ALJ correct to apply the "arbitrary and capricious" standard of review which a court
would use to review an EIS?
Discussion (ID:
No. The ALJ should have reviewed the EIS in the same way a conventional NPDES permit is
reviewed. The courts apply the arbitrary and capricious standard because of statutory and
constitutional restrictions. The ALJ is part of the decisionmaking unit of the Agency, and,
unlike a reviewing court, is free to review the permit de novo. and substitute his or her judgment
for that of the permit issuer where the facts and circumstances warrant it. The principal
limitation on the ALJ's authority is the requirement that his or her decision be based solely on
the facts appearing of record in the proceedings.
Disposition: Since it is evident from the Initial Decision that the ALJ did in fact make an
independent assessment of the record before him in deciding whether the relative environmental
and other costs and benefits of the facility warrant issuance of the permit, there is no need to
remand the proceeding for the taking of further evidence.
-------
40 CFR 125.36(n)(4) (1978)
NPD1S Appeal No.: 81-4
Documents Available:
Order Declining Review of Initial Decision, February 12, 1981.
Permittee:
Ranchers Exploration and Development Corporation
Johnny M Mine, New Mexico
(Permit No. NM 0026573)
Disposition: Upon consideration, and pursuant to 40 CFR §125.36(n)(4) (1978), Permittee's
petition for review of the RA's Initial Decision was declined.
-------
40CFR I24.91(c)(l)(l980);
45 Fed. Reg. 33504 (May 19, 1980);
Denial of Evidentiary Hearing
NPDES Appeal No.: 81-5
Documents Available:
Order Declining Review of Denial of Request for Evidentiary Hearing, February 12, 1981.
Permittee:
Enviro Energy, Inc.
Mine Nos. 1 and 2
Existing Source Determination
(Permit Nos. WV 0048895 and WV 0048909)
Disposition: Upon consideration, and pursuant to 40 CFR 124.91(c)(l), 45 Fed. Reg. 33504 (May
19, 1980), petitioner's request for review of the denial of a request for an evidentiary hearing was
declined.
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Monitoring Provisions;
Bypass Provisions;
OGC No. 3 (March 6, 1975);
OGC No. 23 (July 23, 1975);
Jurisdiction;
40 CFR 122.63(h)(1980);
40 CFR Part 124;
General Permit Conditions/
Challenges;
Review of Regulations;
Administrative Forum;
Effluent Limitations/Calculation;
Credits;
Section 402(a)(l);
Section 509(b)
NPDES Appeal No.: 81-6
Documents Available:
Order on Petition for Review, April 28, 1981.
Order, June 3, 1981.
Decision, June 18, 1981.
Order Denying Review of Issue V, May 2, 1983.
Permittee:
ITT Rayonier Inc.
Port Angeles, Washington
(Permit No. WA-000079-5)
Background;
Permittee, the owner and operator of a dissolving sulfite pulp mill, seeks review of the Region's
partial denial of Permittee's request for an evidentiary hearing. Permittee draws raw water from
the Elwha River, a freshwater tributary of the Strait of Juan de Fuca, and thereafter discharges
the treated effluent into the Strait. Of the five issues raised for review, two were granted. The
first issue (designated as "Issue II" by the Administrator) is discussed below, and concerns
Permittee's request to "net out" raw water pass-through solids and filter plant solids. The other
issue (designated as "Issue V" by the Administrator) concerns whether the Region improperly held
that challenges to general permit conditions which are mandated by NPDES regulations must be
pursued in the courts as a challenge to the validity of consolidated permit regulations themselves.
Issue (I):
Did the Region err in denying permission to calculate effluent limitations on a net basis, so as to
reflect a credit for the suspended solids in the intake water, on the grounds that under 40 CFR
122.63(h)(1980), Permittee does not draw raw water containing certain naturally occurring
suspended solids from the "same body of water" into which it discharges?
Discussion CD:
Yes. Assuming Permittee's allegations of fact are correct (i.e., that the solids removed from the
River would flow directly into the Strait but for the fact that its mill withdraws them as part of
its intake water supply), the two bodies of water in question can be considered the "same body of
water" for purposes of 40 CFR 122.63(h)(1980). See 44 Fed. Reg. at 32865 (June 7, 1979). As is
clear from the preamble to the regulation, the underlying purpose of the "same body of water"
proviso is to protect the quality of the receiving waters by ensuring that a credit is only allowed
when the discharge of pollutants contained in the intake water does not burden the receiving
waters with new or additional pollutants. Consequently, whenever no new or additional
pollutants are added to the receiving waters, it makes no difference that the pollutants are drawn
from one body of water and discharged into another. An example of this is where there is a
natural continuity between two bodies of water, as in this case, and the pollutants that flow
downstream are destined to enter the receiving body of water in any event.
The RA is directed to grant Permittee's request for an evidentiary hearing to determine whether
it is entitled to a credit for the suspended solids in its intake water, and the question of what
-------
adjustments, if any, should be made under §122.63(h)(l)(i)(B) is also remanded for consideration
in an evidentiary hearing.
Issue
Did the RA improperly Permittee's request for a hearing to challenge certain general permit
conditions relating to toxic notification requirements and bypass proscriptions derived from and
mandated by the consolidated permit regulations? [The RA held that such a challenge should be
brought in a federal Court of Appeals, pursuant to CWA §509(b)(l) as part of a challenge to the
regulations themselves.]
Discussion (II):
No. Review of issue denied, since no compelling reason for review remained after two
occurrences. First, the D.C. Circuit held in NRDC v. EPA. 673 F.2d 400 (D.C. Cir. 1982), that
the consolidated permit regulations are an "effluent limitation or other limitation" under •"
509{bXl)(E) of CWA. The Agency has consistently held that such limitations are not subject to
review in an NPDES adjudicatory hearing. Second, in response to a settlement agreement
between EPA and several industry petitioners in litigation involving the consolidated permit
regulations, the Agency proposed certain regulatory changes having a direct bearing on the
general permit conditions being challenged by Permittee, and EPA agreed to propose a change in
regulations to allow for permit modifications.
Disposition: The issue of whether Permittee's entitled to a credit for suspended solids on its
intake water is remanded to the RA for an evidentiary hearing. Review of the issue concerning
the proper forum for challenges to general permits was denied.
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Evidentiary Hearing
NPDES Appeal No.: 81-7
Documents Available:
Order Granting Petition for Review, April 28, 1981.
Order Granting Extension of Time. May 15. 1981.
Permittee:
Alaska Lumber and Pulp Company, Inc.
(Permit No. WA-000079-5)
Background:
Permittee's petition for review of the RA's partial denial of its request for an evidentiary hearing
was granted.
Disposition: Unknown.
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Section 208(b);
Section 208(e)
Discharging Effluent;
Waste Treatment Management
Plans;
Consent Decree
NPDES Appeal No.: 81-8
Documents Available:
Order on Petition for Review, April 29. 1981.
Order Extending Time to File Appellate Brief, May 20, 1981.
Memo from Judicial Officer to the "file" October 29, 1981.
Joint Motion for Termination of Review and Remand of Proceeding, November 9, 1982.
Permittee:
Pima County, Arizona
Mt. Lemmon Treatment Plant
(Permit No. AZ0020028)
Background:
Review of the RA's denial of the permit had been granted with respect to two issues. First,
whether the waste water treatment facility contemplated by EPA funded construction grants was
designed to discharge treated effluent into Sabino Creek in violation of an areawide waste
treatment management plan approved pursuant to CWA §208(b). Second, whether the RA's
denial of the permit was mandated by CWA §208(e).
Disposition: As part of a Consent Decree filed in U.S. District Court, a joint motion for
termination of review and for remand of the proceedings to the RA for issuance of a new permit
was filed and granted.
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Withdrawal of Permit Applications;
Equal Access to Justice Act;
5 USC 504
NPDES Appeal No.: 81-9
Documents Available:
Order, Denial of Remand and of Petitions for Review, August 13. 1982.
fSee also Appeal No, 78-13]
Permittee:
Public Service Company of Oklahoma
Background:
Citizens Action for Safe Energy (CASE) sought review of the RA's Initial Decision to issue an
NPDES permit to Permittee for its proposed Black Fox Nuclear Power Plant. Permittee also filed
a petition for review of certain conditions in the permit.
Issue (I):
Should CASE'S motion requesting the dismissal of Permittee's application "with prejudice" be
granted in view of Permittee's decision to abandon the project?
Discussion (I):
No. It is unclear what is intended by the request to have the application for an NPDES permit
"dismissed with prejudice." Applications for permits are usually either "granted" (L& the permit
is "issued") or "denied"; they are not "dismissed" (either with or without prejudice). A permit
applicant is free to withdraw a permit application at any time prior to the granting or denial of
the permit, as occurred in this instance. A permit applicant is also equally free to reapply for a
permit at any time after having withdrawn the application, subject to whatever rules are in effect
at the time reapplication is made.
Issue (ID:
Does this permit proceeding come within the scope of the Equal Access to Justice Act,
warranting a Remand for Hearing to Determine Fees and Costs?
Discussion (ID:
No. The present proceeding does not come within the scope of the Equal Access to Justice Act,
which provides for the award of costs and fees to a prevailing party other than the United States
in an adversary adjudication. Paragraph (b)(l)(C) of -"504 excludes from the Act's coverage
adversary adjudications which are conducted "for the purpose of granting or renewing a license."
Disposition: Permittee decided to abandon the project, and requested cancellation of the permit
after the Initial Decision had been issued, but before a final permit had been granted. As a
result, the petitions for review were denied.
-------
40 CFR 124.91 (1980);
Deferrals
NPDES Appeal No.: 81-10
Documents Available:
Correspondence between EPA and Permittee's Counsel. February 19, 1981.
Correspondence between EPA and Permittee's Counsel, April 30. 1981,
Correspondence between EPA and Permittee's Counsel, August 18, 1981.
Permittee:
Louisiana-Pacific Corporation
Ketchikan Division
Ketchikan, Alaska Pulp Mill
(Permit No. AK-000092-2)
Disposition:
Consideration of Permittee's notice of appeal and petition for review, filed pursuant to 40 CFR
§124.91 (1980), was deferred pending settlement discussions.
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Fundamentally Different Consolidated Permit
Factors Variance; Regulations;
Procedural Issues; 40 CFR 124.5(b);
Formal/Informal Appeals; 40 CFR 124.64
NPDES Appeal No.! 81-11
Documents Available:
Request for Informal Appeal under 40 CFR §124.5{b), April 17, 1981.
Permittee:
Union Electric Co.
(Permit No. MO-0098001)
Background:
Permittee sought an "informal appeal" under 40 CFR §124.5(b) of the Region's denial of its
"fundamentally different factors" (FDF) variance request. Permittee is also filing a formal appeal
of the FDF denial with the Region under 40 CFR §124.64.
Issue:
Should Permittee's informal appeal under 40 CFR 124.5(b) be granted with respect to the
Region's denial of Permittee's FDF variance?
Discussion:
No. The proper appeal course in the case of FDF variances is under §124.64, not
§124.5(b). An FDF variance is not the kind of "modification" covered by §124.5(b). The
informal appeal in §124.S(b) applies to situations in which an RA has denied a request to initiate
new proceedings with respect to a permit which has already been finally issued. This procedure
does not provide an alternative method to appeal a ruling for which EPA's regulations provide a
specific method of appeal.
Disposition: Informal appeal under 40 CFR 124.5(b) denied, without prejudice to Permittee's
right to pursue an appeal under §124.64.
-------
Effluent Limitations;
Raising Issues;
40 CFR 124.73(a) (1980);
40CFR 124.73(c)(4) (1980)
NPDES Appeal No.: 81-12
Documents Available:
Notice of Appeal and Petition for Review, April 13, 1981.
Correspondence between Judicial Officer and Permittee's Counsel, May 19, 1981.
Permittee:
Towns of Webster and Dudley, Massachusetts
(Webster Permit No. MA0100439)
(Dudley Permit No. MAO 100706)
Background:
Permittee sought review of the RA's order denying a request for an evidentiary hearing with
respect to phosphorous limitations, flow limitations, and settleable solids limitations.
Issue:
Were the matters relating to effluent limitations raised prior to the issuance of a final permit, and
if not, was good cause shown for the failure to raise these issues?
Discussion:
(Not Available)
Disopsjtion: Since Permittee's notice of appeal and petition for review failed to indicate whether
a copy of the document was served on the Regional Hearing Clerk as required by 40 CFR
§124.73(a) (1980), it was returned pursuant to 40 CFR §124.73(c)(4) (1980).
-------
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INDEX
Issues Appeal No.
Anticipated Noncompliance 83-7
Appeal of Variances/Procedure 83-8
Delegated Authority Dents, 1983
Designating Issues Ore-Ida, 1983
Effluent Limitations Borden, 1983
Ephemeral Stream 83-4, 83-5
Evidentiary Hearing 83-1, 83-2, 83-3, 83-9, Linden,'1983;
Hercules, 1983; Dents, 1983; Browning, 1983; Burnham, 1983
Expiration Date of Permit Dents, 1983
Forums Browning, 1983
Fundamentally Different Factors Variance 83-8, 83-9
Inactive Mine Discharges. 83-9
Interstate Nexus 83-8
Jurisdiction 83-4, 83-5
Legal Issues 83-9
Modification of Effluent Limitation Hercules, 1983
Navigable Waters/Waters of the U.S 83-4, 83-5, 83-8
NEPA 83-2
New Discharger Browning, 1983
New Source 83-2, Burnham, 1983
New Source Performance Standards 83-2
Permits, Drafts, Changes in 83-10
Raising/Stating Issues 83-2
Reclassification Burnham, 1983
Reopener Clause 83-3, 83-7
Review of Administrator's Actions Browning, 1983
Revising Permit Conditions Western, 1983; Chevron, 1983
Standard of Review 83-1, 83-2, 83-3, 83-4, 83-5, 83-7, 83-9; Ore-Ida, 1983;
Borden, 1983; Western, 1983; Chevron, 1983; Hercules, 1983;
Burnham, 1983; Dents, 1983; Linden, 1983; Browning, 1983
State Certification 83-10, Borden, 1983; Western, 1983; Chevron, 1983
State Water Quality Management Plan Hercules, 1983
Stays of Effluent Limitations Borden, 1983
Supporting Reasons 83-1
Timely Hearing Requests 83-7
Validity of Permit Regulations Browning, 1983
Wastewater Treatment System Exemption 83-8
General Counsel Decisions
OGC No. 3 (March 6, 1975) Browning, 1983
OGC No. 23 (July 23, 1975) Browning, 1983
Regulations
40 CFR 122.2 (1983) 83-8
40 CFR 122.3 Browning, 1983
40 CFR 122.3(t) (1979) 83-4, 83-8
40 CFR 122.4 83-10
40 CFR 122.62(c)(2) (1981) 83-3, 83-7
40 CFR 122.64(a)(2) (1980) Dents, 1983
40 CFR 124.52 83-8
40 CFR 124.53 83-10
-------
40 CFR I24.55(b) (1980) Borden, 1983
40 CFR 124.60(a) Browning, 1983
40 CFR 124.74 Dents, 1983
40 CFR 124.84 83-10
40 CFR 124.91 (1980) Burnham, 1983; Dents, 1983; Borden, 1983
40 CFR 124.91 (1981) Western, 1983; Chevron, 1983
40 CFR 124.91 (1982) 83-2, Ore-Ida, 1983; Linden, 1983;
Hercules, 1983; Browning, 1983
40 CFR I24.91(a)(l) 83-1
40 CFR 124.9l(a)(l) (1981) 83-3, 83-7
40 CFR 124.91(a)(l) (1983) 83-9
40 CFR 124.91(c) 83-4
40 CFR 124.101 83-8
40 CFR 124.111-127 .-. . 83-8
40 CFR 125.1(p) (1973) 83-8
40 CFR 409.22 83-8
40 CFR 434.11(i) (1981) Burnham, 1983
40 CFR 440.100 83-9
CWA Section
Section 301(a) 83-4, 83-5, 83-8
Section 301(b)(l)(C) Borden, 1983
Section 306 83-2
Section 401 83-10; Borden, 1983; Western, 1983; Chevron, 1983
Section 502(7) 83-4, 83-5, 83-8
Section 502(12) 83-4, 83-5, 83-8
Section 509(b)(l)(E) Browning, 1983
Section 5II(c)(D 83-2
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KEY WORD TABLE
NPDES Appeal No./Permittee
83-1 /The City of Los Angeles,
Department of Public Works
Hyperion Water Pollution Control Plant
(Permit No. CAO109991)
40 CFR 124.9 l(a)(l);
Supporting Reasons;
Standard of Review;
Evidentiary Hearing
83-2/IT Corporation
Ascension Parish, Louisiana
(Permit No. LA0060151)
Standard of Review;
Evidentiary Hearing;
Raising/Stating Issues;
40 CFR 124.91(1982);
Section 306;
83-3/Willamette Industries, Inc.
(Permit No. KY0001708)
Reopener Clause;
40CFR 122.62(c)(2)(1981);
Standard of Review;
83-4/Phillips Uranium Corporation
Noserock, New Mexico
(Permit No. NM-0028274)
Standard of Review;
40 CFR 124.91(c);
Jurisdiction;
Section 301 (a);
83-5/Kerr-McGee Nuclear Corporation
Ambrosia Lake Facility
(Permit No. NM-0020542)
Standard of Review;
Jurisdiction;
Section 301 (a);
83-7/Willamette Industries, Inc.
(Permit No. KY0001716)
Standard of Review;
40 CFR 124.91(a)(l)(1981);
Anticipated Noncompliance;
Section 5ll(cXD;
New Source;
New Source Performance
Standards;
NEPA
Evidentiary Hearing;
40 CFR 124.9(a)(l)(1981)
Section 502(7) and (12);
Navigable Waters/Waters of the U.S.;
40 CFR 122.3(tX1979);
Ephemeral Stream
Section 502(7) and (12);
Navigable Waters/Waters of the U.S.;
Ephemeral Stream
Reopener Clause;
40 CFR 122.62(c)(2) (1981);
Timely Hearing Requests
-------
83-8/Borden, Inc./Colonial Sugars
(Permit No. LA-0000604)
40CFR 125.1(p)(1973);
40 CFR 122.3(t) (1979);
40 CFR 122.2(1983);
Navigable Waters/
Waters of the U.S.;
Interstate Nexus;
Section 301 (a);
Sections 502(7) and (12);
83-9/Hecla Mining Company
(Permit No. ID-000016-7)
40 CFR 440.100;
Fundamentally Different
Factors Variance;
Inactive Mine Discharges;
83-10/Occidental Chemical Agricultural Products, Inc.
(Permit No. FL0000655)
40 CFR 124.53;
40 CFR 122.4;
40 CFR 124.84;
/Ore-Ida Foods, Inc.
(Permit No. ID-000061-2)
Standard of Review;
Designating Issues;
40 CFR 124.91 (1982)
/Borden, Inc.
(Snow Foods Consumer Products Division)
(Permit No. NJ-0004961)
Section 30l(b)(l)(C);
Section 401;
Standard of Review;
Effluent Limitations;
/Western Fher Laboratories, Inc.
(Permit No. PR-000-0701)
Section 401;
Revising Permit Conditions;
State Certification;
/Chevron, USA, Inc.
(Permit No. NJ-0031780)
Section 401;
Revising Permit Conditions;
State Certification;
Wastewater Treatment
System Exemption;
Fundamentally Different
Factors Variance;
Appeal of Variances/Procedure;
40 CFR 124.52 and 409.22;
40 CFR 124.111-127, and 124.101
Standard of Review;
Evidentiary Hearing;
40 CFR 124.91 (a)(l) (1983);
Legal Issues
Permits, Drafts, Changes in;
State Certification;
Section 401
State Certification;
40 CFR 124.91 (1980);
Stays of Effluent Limitations;
40 CFR 124.55(b)(1980)
Standard of Review;
40 CFR 124.91 (1981)
Standard of Review;
40 CFR 124.91 (1981)
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-/Linden Roselle Sewerage Authority
(Permit No. NJ-0024953)
Standard of Review;
Evidentiary Hearing;
40 CFR 124.91 (1982)
-/Consolidation Coal Company,
Burnham Mine
(Permit No. NM0028584)
Standard of Review;
New Source;
40 CFR §434. ll(i)(1981);
-/Hercules Incorporated,
Lake Charles, Louisiana
(Permit No. LA0003689)
Standard of Review;
Evidentiary Hearings;
40 CFR 124.91 (1982);
State Water Quality Management Plan;
Modification of Effluent Limitations
-/Consolidation Coal Company,
Dents Run Mine
(Permit No. WV0044229)
Standard of Review;
Evidentiary Hearings;
40 CFR 124.91 (1980);
Expiration Date of Permit;
40 CFR 122.64(a)(2) (1980);
•/Browning-Ferris Industries,
Chemical Services, Inc.
Calcasieu Facility, Lake Charles
(Permit No. LA0058882)
Validity of Permit Regulations;
Forums;
Section 509(b)(l)(E);
Review of Administrator's Actions;
OGC No. 3 (March 6, 1975);
OGC No. 23 (July 23, 1975);
Reclassification;
40 CFR 124.91 (1980);
Evidentiary Hearing
Delegated Authority;
40 CFR 124.74
New Discharger;
40 CFR 122.3;
40 CFR I24.60(a);
Standard of Review;
Evidentiary Hearings;
40 CFR 124.91 (1982)
-------
40CFR 124.91(a)(l);
Supporting Reasons;
Standard of Review;
Evidentiary Hearing
NPDES Appeal No.: 83-1
Documents Available:
Order Denying Petition for Review, August 29, 1983.
Permittee:
The City of Los Angeles,
Department of Public Works
Hyperion Water Pollution Control Plant
(Permit No. CAO109991)
Background:
Petitioner seeks review of the RA's decision denying a request for an evidentiary hearing.
Petitioner opposes a provision in the permit which prohibits all discharges of sewage sludge into
the Pacific Ocean on and after July 1, 1985. The RA filed a response to the notice of appeal and
petition for review, citing alleged procedural errors and substantive defects in the petition.
Issue:
Should a petition for review be granted when the petition does not contain a statement of
"supporting reasons" as required by § 124.9l(a)(l), and the RA's decision is neither clearly
erroneous nor involves an exercise of discretion or policy which is important?
Discussion:
No. The regulations do not confer an automatic right to have a decision reviewed on appeal, 40
CFR §124.91. It is insufficient for Petitioner simply to allege that the RA's denial of its request
for an evidentiary hearing was improper, and incorporate the request itself as the basis for the
petition. It is incumbent upon Petitioner to state in its petition why the denial of the request was
improper, and to provide "supporting reasons" for its position.
Disposition: Petition for Review denied.
-------
Standard of Review;
Evidentiary Hearing;
Raising/Stating Issues;
40CFR 124.91(1982);
Section 306;
Section511(c)(I);
New Source;
New Source Performance
Standards;
NEPA
NPDES Appeal No.: 83-2
Documents Available:
Order Denying Petition for Review, July 21, 1983.
Permittee:
IT Corporation
Ascension Parish, Louisiana
(Permit No. LA0060151)
Background:
Petitioners, Save Our Selves, Inc., Houmas House Plantation, and the Cabin Restaurant, seek
review of the Region's decision denying their request for an evidentiary hearing. Petitioners
allege that they were denied due process by not being given an opportunity to participate at a
meaningful time in the procedure leading to the "new source" determination; that the factual
conclusions of the RA were clearly erroneous (and made prior to the submission of relevant
evidence by petitioners); that alternative sites for the proposed facility were not considered as
required by the National Environmental Policy Act (NEPA), 42 U.S.C.A. §4321 et seo..: and that
discharges from the proposed facility will be "new sources" .of water pollution.
Issug:
Should a petition for review be granted when the RA's decision is neither clearly erroneous nor
involves an exercise of discretion or policy which warrants review as a discretionary matter?
Discussion:
No. The regulations do not confer an automatic right to have a decision reviewed on appeal, 40
CFR §124.91 (1982). Petitioners' claims respecting an alleged denial of due process and the RA's
supposedly "clearly erroneous" factual conclusions lack the degree of particularity needed to be
meaningful. The remaining grounds for review stem from an erroneous belief by petitioners that
the proposed facility is a "new source" within the meaning of CWA §306 33 U.S.C.A, §1316(a)(2).
A new source is defined under §306 as any source, the construction of which is commenced after
the publication of proposed "new source" standards of performance. In the present case, new
source performance standards applicable to the proposed facility have never been proposed or
finally promulgated. Thus, the proposed facility is not a new source within the meaning of §306
of the CWA, and NEPA's requirements are inapplicable, 33 U.S.C.A. §1371(c)(l).
Disposition: Petition for Review Denied.
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Reopener Clause; Evidentiary Hearing;
40 CFR 122.62(c)(2) (1981); 40 CFR 124.9(a)(l)(!981)
Standard of Review;
NPDES Appeal No.: 83-3
Documents Available;
Denial of Petition for Review, December 27, 1983.
Permittee:
Willamette Industries, Inc.
(Permit No. K.Y0001708)
Background:
Permittee seeks review of the RA's decision denying its request for an evidentiary hearing
regarding the inclusion of a Reopener Clause in the permit.
Issue:
Does the Region have the authority to include a "Reopener Clause" in a permit which is issued
after June 30, 1981?
Discussion:
Yes. Regulations state that permits issued after June 30, 1981 "need not incorporate the
[reopener] clause." 40 CFR §122.62(c)(2) (1981). Thus, although it is no longer mandatory to
incorporate a reopener clause in an NPDES permit, such a clause may still be incorporated after
that date if the RA, in the exercise of his discretion, elects to do so. Permittee has not shown
RA's denial of an evidentiary hearing is clearly erroneous, or that it involves an exercise of
discretion or policy which is important and warrants review as a discretionary matter. 40 CFR
§I24.91(a)(l)(1981).
Disposition: Petition for Review Denied.
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Standard of Review;
40 CFR 124.91 (c);
Jurisdiction;
Section 301 (a);
Section 502(7) and (12);
Navigable Waters/Waters of the U.S.;
40 CFR I22.3(t)(1979);
Ephemeral Stream
NPDES Appeal No.: 83-4
Documents Available:
Denial of Petition for Review, August 5, 1983.
Permittee:
Phillips Uranium Corporation
Noserock, New Mexico
(Permit No. NM-0028274)
Background:
Permittee seeks review of the Region's decision in which it was concluded that Permittee's
discharges of pollutants are subject to CWA's requirements governing NPDES permits. Permittee
is not contesting any of the permit terms or conditions, but rather EPA's jurisdiction under CWA
to issue or to require Permittee to obtain an NPDES permit for its uranium mine's discharges into
an ephemeral stream.
Issug:
Is an "ephemeral stream," into which mineshaft water is discharged, part of the "waters of the
United States" under §502(7), thus making the discharges subject to NPDES permit requirements
under CWA §301 (a)?
Discussion:
Yes. Under CWA §301(a), it is unlawful, inter alia, for any person to discharge any pollutant
without an NPDES permit issued pursuant to §402. The term "discharge of a pollutant" is defined
in §502(12) as "any addition of any pollutant to navigable waters from any point source." The
term "navigable waters" is defined in §502(7) as "waters of the United States." The EPA
regulation defining "navigable waters" specifically includes "intermittent streams" but does not
mention "ephemeral streams," 40 CFR §122.3(t) (1979). However, the regulation is merely
illustrative of different categories or types of navigable waters, rather than an all inclusive listing.
The definition of "navigable waters" in the statute is to be given the broadest possible
interpretation consistent with constitutional principles, so as not to defeat the Congressional
purpose. In this instance, the RA found that discharges of pollutants from Permittee's mine
affected interstate commerce, and that the ephemeral stream into which Permittee's discharges
are made is capable of transporting pollutants to perennial waters of the United States.
Therefore, the discharges are subject to NPDES requirements "even if continuous flow never
exists in the transporting waters."
Disposition: Petition for Review Denied.
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Standard of Review; Section 502(7) and (12);
Jurisdiction; Navigable Waters/Waters of the U.S.;
Section 30l(a); Ephemeral Stream
NPDES Appeal No.: 83-5
Documents Available:
Denial of Petition for Review, August 5, 1983.
Permittee:
Kerr-McGee Nuclear Corporation
Ambrosia Lake Facility
{Permit No. NM-0020542)
Background:
Permittee seeks review of the RA's Initial Decision in which it was concluded that Permittee's
discharges of mineshaft water from its uranium mines are subject to CWA's requirements
governing NPDES permits. Permittee argues that the RA's decision unlawfully expands EPA's
jurisdiction under CWA to include its discharges to an arroyo (ephemeral stream). Permittee's
objections center on the fact that the CWA jurisdictional requisites were deemed to have been
fully satisfied, notwithstanding the fact that there is no continuity of flow between the point of
discharge and the point where navigable-in-fact waters are reached; and that, in portions of the
channel, the water normally only flows underground (by migration through the alluvium
underlying the course of the surface channel), and may take centuries before reemerging as part
of the surface flow.
Issue:
Is an ephemeral stream, into which mineshaft water is discharged, part of the "waters of the
United States" under §502(7), thus making the discharges subject to the NPDES permit
requirements under CWA §301 (a)?
Discussion:
Yes. Under CWA §301 (a), it is unlawful, inter alia, for any person to discharge any pollutant
without an NPDES permit issued pursuant to §402. The term "discharge of a pollutant" is defined
in §502(12) as "any addition of any pollutant to navigable waters from any point source." The
term "navigable waters" is defined in §502(7) as "waters of the United States." Under applicable
court decisions, the definition of "navigable waters" is to be given the broadest possible
interpretation consistent with constitutional principles. Several courts have construed the scope
of EPA's jurisdiction to specifically embrace the discharges of pollutants into normally dry
arroyos, even if the water in the arroyo eventually ends up in underground waters. In this
instance, the RA's Initial Decision cannot be termed "clearly erroneous" for purposes of deciding
whether or not to accept review. The RA found that surface flow does occasionally occur, albeit
on an average of not more than once every five years, thereby providing a surface connection
independent of the underground flow. The RA also found that water in a connecting arroyo,
including its underground component, could affect interstate commerce by its effects on
pasturage and water supplied for a downstream cattle ranch.
Disposition: Petition for Review Denied.
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Standard of Review; Reopener Clause;
40 CFR 124.91(a){l) (1981); 40 CFR 122.62(c)(2) (1981);
Anticipated Noncompliance; Timely Hearing Requests
NPDES Appeal No.: 83-7
Documgnts Available:
Denial of Petition for Review, December 27, 1983.
Permittee:
Willamette Industries, Inc.
(Permit No. K.Y0001716)
Background:
Permittee seeks review of the RA's denial of Permittee's request for an
evidentiary hearing concerning the anticipated noncompliance provision and the reopener clause
of its permit.
Issued):
Was the permit condition regarding anticipated noncompliance included in Permittee's draft
permit?
Discussion (I):
Yes. The condition was included in the draft permit, and Permittee failed to comment on it.
Thus, the request for an evidentiary hearing is not timely and the request for review is denied.
Issue (II):
Does the Region have the authority to include a Reopener Clause in a permit which has been
issued after June 30, 1981?
Discussion (II):
Yes. Regulations state that permits issued after June 30, 1981 "need not incorporate the
[reopener] clause." 40 CFR §122.62(c)(2) (1981). Although it is no longer mandatory to
incorporate a reopener clause into an NPDES permit issued after June 30, 1981, such a clause
may be incorporated after that date if the RA, in his discretion, elects to do so. The RA's
decision to include a reopener clause in the permit was neither clearly erroneous, nor did it
involve an exercise of discretion or policy which warrants review.
Disposition: Petition for Review Denied.
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40CFR I25.1(p)(1973);
40CFR I22.3(t)(1979);
40 CFR 122.2(1983);
Navigable Waters/
Waters of the U.S.;
Interstate Nexus;
Section 301 (a);
Sections 502(7) and (12);
Wastewater Treatment
System Exemption;
Fundamentally Different
Factors Variance;
Appeal of Variances/Procedure;
40 CFR 124.52 and 409.22;
40 CFR 124.111-127, and 124.101
NPDES Appeal No.: 83-8
Documents Available:
Decision Reversing the Initial Decision and Remanding the Proceeding, September 25, 1984.
Order Granting Review, Sept. 27, 1983.
Permittee:
Borden, Inc./Colonial Sugars
(Permit No. LA-0000604)
Backgrpumj:
The Region appeals from the ALJ's Initial Decision holding that a sugar refinery's privately
owned bottomland hardwood wetlands, into which the refinery's wastewaters are discharged, is a
natural wastewater treatment system and not "waters of the United States," and therefore the
discharges are not subject to the NPDES permit requirements.
Issue (I):
Did the AU err by limiting his inquiry to whether Permittee's privately owned wetlands, into
which the refinery's wastewaters are discharged, were "waters of the United States," rather than
inquiring whether the entire wetland system of which Permittee's wetlands were an integral part
were "waters of the United States"?
Discussion (I):
Yes. Permittee's wetlands and the contiguous non-company wetlands are integral parts of the
same hydrologic system. The only barrier that separates them is the artificial one created by
Permittee's property line, which is not a legally sufficient basis under CWA for distinguishing the
waters lying on either side of the property boundary.
Issue fin:
Is the wetlands system, of which Permittee's wetlands are a part, related to interstate commerce,
providing EPA with jurisdiction?
Discussion HP:
Proceeding remanded. On the basis of the appeal record, it is not possible to determine whether
the wetlands system, of which Permittee's wetlands are an integral part, has an impact on, or is
related to interstate commerce. The inquiry on remand must be related to past, present, and
future activities occurring in the wetlands system.
In determining which wetlands are waters of the United States, and thus subject to the
requirements of CWA, the focus of the inquiry is on whether the wetlands are reasonably related
to, or have an impact on, interstate commerce. EPA's authority over navigable waters is based on
the commerce clause of the U.S. Constitution. In determining whether particular wetlands have
an impact on interstate commerce, authoritative sources include the legislative history of CWA,
federal cases, and current regulations. Congress has asserted that the definition of "waters of the
United States" is to be given the "broadest possible Constitutional interpretation." Several federal
courts have interpreted the 1972 Act to cover wetlands despite the fact that the impact on
interstate commerce of the wetlands in question was neither significant nor direct. Additionally,
EPA's current NPDES regulations provide guidance. Under 40 CFR 122.2, "waters of the United
-------
States" are defined as, intej* alia, "interstate wetlands," "wetlands which affect or could affect
interstate commerce," and wetlands "adjacent" to specified watercourses.
Issue (IIP:
Did the ALJ err by applying the 1979 regulations, which were not in effect at the time the
permit was issued?
Discussion (IIP:
Yes. Regulations applicable to any NPDES permit are those in effect at the time the permit is
issued. 40 CFR 124.86(c) (1983) allows NPDES regulations promulgated subsequent to the
issuance of a permit to be applied upon motion of a party during an evidentiary hearing under
Subpart E, but the record does not show in this instance that any such motion was made by either
party.
Issue (IVY.
Did the ALJ err by holding that Permittee's wetlands were a natural waste treatment system
under the 1979 regulations, and therefore specifically exempted from the definition of waters of
the United States?
Discussion fIV):
Yes. In view of Congress' and various courts' expressed concern over preserving and protecting
wetlands, EPA certainly could not have intended wetlands to be used as a depository for
untreated wastewater which would destroy the delicate, intricate, and valuable ecosystems
indigenous to such areas. The 1979 exemption, 40 CFR 122.3(t)(6), refers to waste treatment
systems. Since the preamble to the regulations refers specifically to closed systems, it would
appear that for the exemption to apply, there must be a containment or an impoundment of the
wastewaters. Permittee's wetlands are not separated from the remainder of the wetlands system
by a physical barrier; nor are they impounded or otherwise segregated within a containment
system. To the extent the Initial Decision defines the wastewater treatment exemption in the
1979 NPDES regulations as embracing Permittee's wetlands, it is expressly overruled.
Issue (V):
Is Permittee entitled to a variance based on the presence of "fundamentally different factors"
(PDF)?
Discussion (V):
Proceeding remanded. If the ALJ decides that EPA has jurisdiction over Permittee's wetlands
under CWA, he must also decide whether Permittee is entitled to an FDF variance. Also, the
issue of the applicability of current procedures relating to the appeal of variances, and the
question of whether the proceeding on remand should be conducted under the adjudicatory
hearing procedures which were in effect at the time of the original hearing before the ALJ, or
which were stipulated by the parties, are commended to the ALJ to decide after seeking and
considering the parties' recommendations.
Disposition: Proceeding remanded for decision in accordance with this decision.
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40 CFR 440.100; Standard of Review;
Fundamentally Different Evidentiary Hearing;
Factors Variance; 40 CFR 124.91(a)(l) (1983);
Inactive Mine Discharges; Legal Issues
NPDES Appeal No.: 83-9
Documents Available:
Order Denying Petition, June 25, 1984.
Permittee:
Hecia Mining Company
(Permit No. ID-000016-7)
Background:
Permittee seeks review of the RA's decision denying Permittee's request for an evidentiary
hearing to contest the denial of its request for a fundamentally different factors (FDF) variance
from the ore mining effluent guidelines, 40 CFR §440.100 et sea. The request for the variance
was still pending when Permittee informed the Region that its mine was being permanently shut
down. However, due to the fact that discharges from the mine were to continue after the mine's
closure, Permittee notified EPA of its continued desire to have the FDF variance approved. The
Region denied the request, taking the position that since ore mining activities were being
discontinued, the effluent guidelines for ore mining were no longer applicable to the discharges.
Instead, effluent limitations for the discharges that continued after the mine's closure would have
to be established on the basis of best engineering judgment, for no effluent guidelines had been
established for discharges from inactive mines. Thereafter, Permittee's request for a hearing was
denied because the request raised a legal issue and not any material issues of fact for an
evidentiary hearing.
Issue:
Did the Region correctly deny Permittee's request for a hearing on the grounds that the request
raised only a legal issue and not any material issue of fact?
Discussion:
The Region correctly observed that since there was no dispute regarding the closed status of the
mine at the time the variance request was denied, no material issue of fact was presented in the
evidentiary hearing request. Moreover, the legal issue need not be reviewed at this time because
the Region intends to consider Permittee's variance request in connection with a new draft permit
for the mine, if any changes in the operational status of the mine warrant consideration of the
request.
Disposition: Petition for Review Denied.
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40 CFR 124.53; Permits, Drafts, Changes in;
40 CFR 122.4; State Certification;
40 CFR 124.84; Section 401
NPDES Appeal No.: 83-10
Documents Available:
Initial Decision, November 28, 1983.
Permittee:
Occidental Chemical Agricultural Products, Inc.
(Permit No. FL0000655)
Background:
Permittee seeks renewal of permit which will contain an additional discharge point and outfall as
well as two existing points, which EPA drafts. Later, another permit is drafted declaring the
proposed addition a "new source" requiring a separate permit. Later, the "new source"
determination is withdrawn and a permit for all three points is drafted. Finally, a new permit is
drafted authorizing the two existing points. A decision on the additional source is deferred.
Permittee files ends granted a motion for an evidentiary hearing.
Issue:
Did EPA err in altering the original draft permit by eliminating authorization of the additional
outfall sought by permittee, where the alteration was based on the State's anticipated response to
the permit?
Discussion:
Yes. The decision to delete the additional source was based on the Agency's belief that if it were
included, the state would deny certification. This belief was the result of a letter received from
the relevant state agency and the failure of the permittee to include a Section 401 Certification
Letter in its permit application. However, it was error for EPA to redraft the permit since the
Clean Water Act and its regulations: a) do not authorize EPA to issue permits based on
anticipated state responses and b) contain procedures to remedy the failure to attach a Section 401
letter.
Disposition: The ALJ ordered the issuance of a final permit authorizing all discharge points
sought by permittee.
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Standard of Review;
Designating Issues;
40CFR 124.91 (1982)
NPDES Docket No.: X-WP-80-16
Documents Available:
Order Denying Petition for Review, March 23, 1983.
Permittee:
Ore-Ida Foods, Inc.
(Permit No. ID-000061-2)
Background:
Permittee seeks review of the Region's decision which partially denied Permittee's request for an
adjudicatory hearing. The Region asserts that most of the issues raised by Permittee were in fact
designated by the RA for consideration in an evidentiary hearing, and that the remainder are
insubstantial and relate only to "boiler plate" conditions taken directly from nationally
promulgated regulations.
Issue:
Should the Petition for Review be granted?
Discussion:
No. A Petition for Review is not normally accepted unless the decision is clearly erroneous or
involves an exercise of discretion or policy which is important and which should be reviewed as a
discretionary matter. The regulations do not confer an automatic right to have a decision
reviewed on appeal. In the instant proceeding, the RA's decision to deny Permittee's request for
review of the "boiler plate" provisions of the permit is neither clearly erroneous nor warrants
review as a discretionary matter.
Disposition: Petition for Review denied.
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Section 30 1 (b)( 1 )(C); State Certification;
Section 401; 40 CFR 124.91 (1980);
Standard of Review; Stays of Effluent Limitations;
Effluent Limitations; 40 CFR I24.55(b)(1980)
NPDES Docket No.: II-WP-80-18
Documents Available:
Order Denying Petition for Review, March 25, 1983.
Permijteg:
Borden, Inc.
(Snow Foods Consumer Products Division)
(Permit No. NJ-0004961),
Background:
Permittee requests review of the Region's decision to deny Permittee's request for an evidentiary
hearing. Permittee disputes the Region's conclusion that effluent limitations for TSS and Oil and
Grease were included in its NPDES permit pursuant to a State Water Quality Certificate issued
under CWA §401, and contends that these limitations were imposed as a result of the Region's
BPT determination. Permittee also claims that since the State certification for BOD; was stayed
as the result of an appeal and hearing request filed with State authorities, the BOD5 effluent
limitation in the federally- issued NPDES permit should likewise be stayed.
Issued:
Was the Region's conclusion that effluent limitations for TSS and Oil and Grease were imposed
pursuant to a State Water Quality Certificate issued under CWA §401 clearly erroneous?
Discussion (I):
No. Even if the Region originally based the TSS and Oil and Grease limitations on a BPT
determination, the Region is not foreclosed from using that determination in setting effluent
limitations that are necessary to satisfy State water quality standards in accordance with CWA
§301(b)(l)(C).
Issue
Should the BODs effluent limitations in the federally- issued permit be stayed as a result of an
appeal and hearing request filed at the State level?
Discussion (ID:
No. Under 40 CFR §124.5S(b) (1980), the RA lacks the authority to stay an effluent limitation in
the absence of a modified certification or notice of waiver issued by the State and forwarded to
EPA. In the instant proceeding, no such modified certification or notice of waiver was ever
forwarded to EPA. Permittee's contention that State officials have orally indicated that the State
certification has been stayed is not sufficient to suspend the operation of this
provision of the regulations.
Disposition: Petition for Review denied.
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Section 401; Standard of Review;
Revising Permit Conditions; 40 CFR 124.91 (1981)
State Certification;
NPDES Docket No.: II-WP-80-19
Documents Available:
Order Denying Petition for Review, March 25, 1983.
Permittee:
Western Fher Laboratories, Inc.
(Permit No. PR-000-0701)
Background:
Permittee requests review of the Region's denial of Permittee's request for an evidentiary hearing
to contest certain conditions in its NPDES permit. The Region had denied the request on the
grounds that the permit conditions were imposed pursuant to a State Water Quality Certificate
and could not be revised through an evidentiary hearing.
Issue:
Does the Region have authority to revise NPDES permit conditions imposed pursuant to a State
Water Quality Certificate issued under CWA §401 through the mechanism of an evidentiary
hearing?
Discussion:
No. Several courts have concluded that "federal courts and agencies are without authority to
review the validity of requirements imposed under state law or in a state's certification."
Petitions for Review are normally not accepted unless the decision is clearly erroneous or involves
an exercise of discretion or policy which is important and which should be reviewed as a
discretionary matter. The regulations do not confer an automatic right to have a decision
reviewed on appeal, 40 CFR §124.91 (1981). In the instant proceeding, the Region's decision is
neither clearly erroneous nor involves an exercise of discretion or policy which warrants review
as a discretionary matter.
Disposition: Petition for Review denied.
-------
Section 401; Standard of Review;
Revising Permit Conditions; 40 CFR 124.91 (1981)
State Certification;
NPDES Docket No.: II-WP80-21
Documents Available:
Order Denying Petition for Review, June 16, 1983.
Permittee:
Chevron, USA, Inc.
(Permit No. NJ-0031780)
Background:
Permittee requests review of the Region's decision to deny Permittee's request for an evidentiary
hearing. Permittee had requested the evidentiary hearing to contest the inclusion in the permit of
language taken from the State §401 certification.
Issue:
Does the Region have authority to revise, through an evidentiary hearing, NPDES permit
language taken from State §401 certification?
Discussion:
No. The Region lacks the discretion to change the terms of the State Certification, for it has
been clearly established that "federal courts and agencies are without authority to review the
validity of requirements imposed under state law or in a state's certification."
Petitions for review are normally not accepted unless the decision is clearly erroneous or involves
an exercise of discretion or policy which is important and which should be reviewed as a
discretionary matter. The regulations do not confer an automatic right to have a decision
reviewed on appeal, 40 CFR §124.91 (1982). In the instant proceeding, the Region's decision
denying review is neither clearly erroneous nor involves an exercise of discretion or policy which
warrants review as a discretionary matter.
Disposition: Petition for Review denied.
-------
Standard of Review;
Evidentiary Hearing;
40 CFR 124.91 (1982)
NPDES Appeal No.: —-
Documents Available:
Order Denying Petition for Review, March 30, 1983.
Permittee:
Linden Roselle Sewerage Authority
(Permit No. NJ-0024953)
Background:
Permittee seeks review of the RA's decision denying Permittee's request for an evidentiary
hearing.
Issue:
Should a petition for review of the RA's denial of an evidentiary hearing be granted when the
decision is neither clearly erroneous nor involves an exercise of discretion or policy which
warrants review as a discretionary matter?
Discussion:
No. A petition for review is not normally accepted unless the decision is clearly erroneous or
involves an exercise of discretion or policy which is important and which should be reviewed as a
discretionary matter. The regulations do not confer an automatic right to have a decision
reviewed on appeal, 40 CFR §124.91 (1982).
Disposition: Petition for Review denied.
-------
Standard of Review; Reclassification;
New Source; 40 CFR 124.91 (1980);
40 CFR §434.1 l(i) (1981); Evidentiary Hearing
NPDES Docket No.: EH-6-81-306
Documents Available:
Order Denying Petition for Review, March 31, 1983.
Permittee:
Consolidation Coal Company,
Burnham Mine
(Permit No. NM0028584)
Background-
Permittee seeks review of the RA's denial of a request for an evidentiary hearing to challenge the
^classification of its mine as a "new source."
Issue:
Did the RA appropriately exercise his discretionary authority in concluding that reclassification
of the mine was both necessary and appropriate to implement the Third Circuit's decision in
Pennsylvania Citizens' Coalition v. EPA. 618 F.2d 991 (3rd Cir. 1980), in accordance with
amended regulations?
Discussion:
Yes. The amended regulations were adopted in order to bring EPA's definition of
"new source coal mine" into compliance with the Third Circuit's decision. The RA's decision is
neither clearly erroneous nor involves an exercise of discretion or policy which is important and
which warrants review as a discretionary matter. The regulations do not confer an automatic
right to have a decision reviewed on appeal, 40 CFR §124.91 (1980).
Disposition: Petition for Review denied.
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Standard of Review;
Evidentiary Hearings;
40 CFR 124.91 (1982);
State Water Quality Management Plan;
Modification of Effluent Limitations
NPDES Docket No.: EH-6-81-049
Documents Available:
Order Denying Petition for Review, March 30, 1983.
Permittee:
Hercules Incorporated,
Lake Charles, Louisiana
(Permit No. LA0003689)
Background:
Permittee seeks review of the RA's denial of Permittee's request for an evidentiary hearing.
Permittee had requested an evidentiary hearing to contest the Region's denial of a request for
modifications to the BOD& and TSS effluent limitations in its PSD permit. The Region refused to
modify the limitations in part on the grounds that it lacked discretion to impose less stringent
limitations than those required under the State Water Quality Management Plan.
Issue:
Do proposed State permit modifications which relax some of the requirements dictated by the
State Water Quality Management Plan justify modification of EPA's more stringent NPDES
permit requirements?
Discussion:
No. In the absence of an actual modification to the State plan, the Agency is bound by the
requirements of the State plan, notwithstanding proposed modifications to the State permit. The
Region lacked the discretion to relax the terms in the permit which were put there for the
purpose of satisfying the requirements of the State plan. Several courts have concluded that
federal courts and agencies are without authority to review the validity of requirements imposed
under state law or in a state's certification.
Disposition: Petition for Review denied.
-------
Standard of Review;
Evidentiary Hearings;
40 CFR 124.91 (1980);
Expiration Date of Permit;
40 CFR 122.64(a)(2) (1980);
Delegated Authority;
40 CFR 124.74
NPDES Appeal No.: —
Documents Available;
Order Denying Petition for Review, April 7, 1983.
Permittee:
Consolidation Coal Company,
Dents Run Mine
(Permit No. WV0044229)
Background:
Permittee seeks review of the RA's decision to deny Permittee's request for an evidentiary
hearing to challenge the short expiration date of the permit. The permit was issued in December
of 1980 with an expiration date of June 30, 1981. The request for a hearing was denied on the
grounds that it only raised a legal issue for review, and hence, was not an appropriate subject for
an evidentiary hearing under 40 CFR 124.74.
Issue:
Should a petition for review of the RA's denial of a request for an evidentiary hearing to
challenge the expiration date of a permit be granted when the RA's decision is neither clearly
erroneous nor involves an exercise of discretion or policy which warrants discretionary review?
Discussion:
No. The regulations do not confer an automatic right to have a decision reviewed on appeal, 40
CFR §124.91 (1980). The length of the permit term was dictated by 40 CFR §122.64(a)(2) (1980).
In its request for an evidentiary hearing, Permittee failed to submit any information or allege any
facts which, by the terms of the regulation, would have allowed the RA to issue the permit with
an expiration date beyond June 30, 1981.
Disposition: Petition for Review denied.
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Validity of Permit Regulations; New Discharger;
Forums; 40 CFR 122.3;
Section 509
-------
-------
INDEX
Issues Appeal No.
Administrative Orders 84-10
Best Management Practices (BMP) 84-1
Bifurcated Approach 84-4, 84-13
Brine Discharge 84-8
Chlorine Limits 84-8
Effluent Guidelines 84-11
Effluent Limitations 84-12
Enforcement Authority 84-10
Ephemeral Stream 84-3a, 84-5
Evidentiary Hearings 84-4, 84-5, 84-6, 84-8, 84-10, 84-11, 84-13
Forums 84-11, 84-12
Fundamentally Different Factors Variances 84-3
Good Cause Exemptions 84-8
Historic Preservation 84-6
Indicator Pollutant Limitations 84-8
Information-Gathering Requirements 84-8
Internal Wastestream Limits 84-2
Issues of Fact/Law 84-4, 84-13
Jurisdiction 84-3a, 84-5
Legal Issues 84-2, 84-12
Material/Relevant Issues of Fact 84-8
Memorandum of Agreement 84-6
Modifying Monitoring Requirements 84-8
Navigable Waters/Waters of the U.S 84-3a, 84-5
pH Ranges 84-8
Raising/Prior Submission of Issues 84-8
Standard of Review 84-3a, 84-5, 84-6, 84-11, 84-12
State Certification 84-3a, 84-12
Stays of Enforcement 84-11
Withdrawal of Permit Application 84-9
General Counsel Decisions
OGC No. 44 (June 22, 1976) 84-3a
OGC No. 58 (March 2, 1977) 84-3a, 84-12
Regulations
40 CFR 122.45(i) 84-2
40 CFR 122.49 84-6
40 CFR 124.55 84-3a
40 CFR 124.56 (1984) 84-8
40 CFR 124.63(a)(2) 84-3
40 CFR 124.74 84-4, 84-12
40 CFR 124.74 (1983) 84-10
40 CFR 124.74 (1984) 84-8, 84-13
40 CFR 124.74(c)(5) 84-1
40 CFR 124.75 84-11, 84-12
40 CFR 124.75 (1984) 84-8
40 CFR 124.76 (1984) 84-8
40 CFR 124.84(b) 84-4
40 CFR 124.91(1983) 84-12
40 CFR 124.91 (1985) 84-3a
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40 CFR 124.91(a) 84-11
40 CFR 124.91(a)(l) 84-6
40 CFR 415.292 (1984) 84-8
CWA Section Appeal No.
Section 301(a) 84-5
Section 301(b)(l)(C) 84-12
Section 308 84-8
Section 309 84-10
Section 401 84-3a
Section 502(7) 84-5
Section 502(12) 84-5
Section 510 84-3a
Other Citations
16 U.S.C. 470 etseo 84-6
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KEY WORD TABLE
NPDES Anneal No./Permittee
84-I/Potomac Electric Power Company (PEPCO)
(Permit Nos. DC0022004, DC0000094, DC0000108)
Best Management Practices (BMP);
40 CFR 124.74(c)(5)
84-2/Georgia Pacific Corporation
40 CFR 122.450);
Legal Issues;
Internal Wastestream Limits
84-3/HecIa Mining Co.
Fundamentally Different
Factors Variances;
40 CFR 124.63(a)(2)
84-3a/Quivira Mining Co.
(Permit No. NM0028207)
Section 401;
Standard of Review;
Jurisdiction;
State Certification;
40 CFR 124.91 (1985);
40 CFR 124.55;
84-4/PetroIite Corporation
(Permit No. OK0000841)
Issues of Fact/Law;
40 CFR 124.74;
Evidentiary Hearing;
84-5/Uoited Nuclear-Homestake Partners
Grants, New Mexico
(Permit No. NM-0020389)
Navigable Waters/Waters of the U.S.;
Standard of Review;
Evidentiary Hearing;
84-6/North American Coal Corporation
(Permit No. TX0092134)
Standard of Review;
Evidentiary Hearing;
40 CFR 124.91(aXO;
Memorandum of Agreement;
Navigable Waters/Water of the U.S.;
Section 510;
Ephemeral Stream;
OGC No. 58 (March 2, 1977);
OGC No. 44 (June 22, 1976)
40 CFR 124.84(b);
Bifurcated Approach
Jurisdiction;
Sections 301 (a), 502(7), 502(12);
Ephemeral Stream
Historic Preservation;
16 U.S.C. 470 et sea.:
40 CFR 122.49
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84-7/Allied Corporation
(Dockett No. LA 0000329)
/National Distillers Chemical Corporation
(Docket No. TX0006297)
84-8/Great Lakes Chemical Corporation
(Permit No. AR-0001171)
40CFR §124.74(1984);
40 CFR§ 124.75 (1984);
40 CFR §124.76 (1984);
Evidentiary Hearing;
Material/Relevant Issues
of Fact;
Raising/Prior Submission
of Issues;
40 CFR 415.292 (1984);
Brine Discharge;
40 CFR 124.56 (1984);
84-9/Lower Colorado River Authority, Powell Bend Mine
(Permit No. TX0092576)
Withdrawal of Permit Application
84-10/Peabody Coal Company
(Permit No. AZ0022179)
Section 309;
Enforcement Authority;
Evidentiary Hearings;
84-11/SchuylkiII Metals Corporation
(Permit No. LA0004464)
40 CFR 124.75;
40 CFR 124.91 (a);
Standard of Review;
Stays of Enforcement;
84-12/Ina Road Water Pollution Control Facility,
Pi ma County, Arizona
(Permit No. AZ0020001)
Legal Issues;
Forums;
Standard of Review;
OGC No. 58;
Section 301(b)(lKC);
Indicator Pollutant
Limitations;
Good Cause Exemptions;
Chlorine Limits;
Section 308;
Information-Gathering
Requirements;
Modifying Monitoring
Requirements;
pH Ranges
Administrative Orders;
40 CFR 124.74 (1983)
Evidentiary Hearing;
Forums;
Effluent Guidelines
40 CFR 124.91(1983);
State Certification;
Effluent Limitations;
40 CFR 124.74;
40 CFR 124.75
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84-13/446 Alaska Placer Mines, more or less
(Permit No. AK0029467, et al.)
40CFR 124.74(1984);
Evidentiary Hearings;
Bifurcated Approach;
Issues of Fact/Law
* See NPDES Appeal No. 85-9 regarding this Permit Number.
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Best Management Practices
(BMP);
40 CFR 124.74(c)(5)
NPDES Appeal No.: 84-1
Documents Available:
Order Remanding Proceedings and Denying Petition for Review, March 14, 1984.
Permittee:
Potomac Electric Power Company (PEPCO)
(Permit Nos. DC0022004, DC0000094, DC0000108)
Background:
Permittee seeks review of the RA's denial of its request for an evidentiary hearing on the
inclusion of a Best Management Practices (BMP) requirement in its permits. The reqir^t was
denied on the grounds that Permittee had not stated a clear "alternative" to the BMP requirement.
Permittee asserts that the Region's BMP requirement is unjustified and that the "alternative"
which it seeks is "no BMP requirement."
Issue:
Does Permittee's clarification in its petition that the "alternative" it seeks to a BMP requirement is
"no BMP requirement" constitute a clear "alternative" under 40 CFR 124.74(c)(5), entitling
Permittee to reconsideration of its request for an evidentiary hearing?
Discussion:
Yes.
Disposition: Based on the clarification in Permittee's petition, the proceeding is remanded so that
the Region can reconsider its previous ruling and grant Permittee's evidentiary hearing request on
the BMP issue, if appropriate. The petition for review is denied without prejudice and may be
renewed if the hearing request is again denied.
-------
40 CFR 122.45(1);
Legal Issues;
Internal Wastestream Limits
NPDES Appeal No.: 84-2
Documents Available:
Permittee:
Georgia - Pacific Corporation
Background:
Region has imposed limits on internal wastestreams in permit. Permittee's challenge dismissed as
raising purely legal issues not suited to an evidentiary hearing.
Issue:
Are challenges to the imposition of internal wastestream limits purely legal in nature, and
therefore not a basis for the grant of an evidentiary hearing?
Discussion:
No. An evidentiary hearing can be granted upon request when factual issues exist. The
imposition of limits on internal wastestreams requires factual proof that discharge limits are
infeasible or impractical, hence an evidentiary hearing may be granted. Otherwise, challenges to
the validity of EPA regulations and authority may not be raised in an evidentiary hearing.
Disposition:
Proceedings remanded for an evidentiary hearing limited to the demonstration that discharge
limitations are not infeasible or impractical.
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Fundamentally Different Factors Variances;
40CFR 124.63(a)(2)
NPDES Appeal No r 84-3
Documents Available:
Permittee:
Hecla Mining Co., Star/Morning Facility
Issue:
In deciding whether to issue a fundamentally different factors variance, is it reasonable for the
RA to delay a variance decision until after permit issuance and the commencement of facility
operation in order to obtain necessary data relevant to the issuance of a variance?
Discussion:
Yes. In considering whether to issue a variance pursuant to 40 CFR 124,63(a)(2), the RA may
delay the decision until such time that necessary data is available.
Disposition:
Decision of the RA to delay variance decision upheld.
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Section 401; Navigable Waters/Water of the U.S.
Standard of Review; Section 510;
Jurisdiction; Ephemeral Stream;
State Certification; OGC No. 58 (March 2, 1977);
40 CFR 124.91 (1985);OGC No. 44 (June 22, 1976)
40 CFR 124.55;
NPDES Appeal No.: 84-3a
Documents Available:
Order Denying Petition for Review, May 19, 1986.
Permittee:
Quivira Mining Co.
(Permit No. NM0028207)
Background:
Permittee seeks review of the RA's denial of its request for an evidentiary hearing. Permittee
argues EPA does not have jurisdiction over its discharges, and thus no NPDES permit is required.
If an NPDES permit is required, Permittee contests the inclusion of provisions contained in the
State certification.
IsgueQ):
Does EPA have jurisdiction over Permittee's discharges into an "ephemeral stream" or "dry
arroyo"?
DiscussiooJD:
Yes. The Tenth Circuit previously has held that San Mateo Creek (an ephemeral stream, or dry
arroyo) is, for purposes of CWA, a "water of the U.S.," thus establishing EPA's regulatory
authority. Since no new facts necessitate a departure from that decision. Permittee is required to
obtain an NPDES permit.
Issue flD:
Does EPA have jurisdiction to review whether the inclusion in the permit of state-certified
monitoring requirements and water quality standards was unnecessary (or more stringent than
necessary) to assure compliance with CWA?
Discussion (II):
No. Under 40 CFR §124.55, the proper forum to review the appropriateness of a State's
certification is the State court. Federal courts and agencies are without authority to review the
validity of requirements imposed under State law or in a State's certification. CWA preserves a
State's right to enact its own anti-pollution measures, even if they are more stringent than
necessary to comply with CWA (CWA §510). Limitations contained in a State certification must
be included in an NPDES permit (OGC No. 58, March 2, 1977; OGC No. 44, June 2, 1976).
However, EPA must disregard State-certified limitations or requirements if they are less stringent
than those in the permit [40 CFR 124.55(c)(1985)], which is not the case here.
Disposition: Petition for Review denied. A Petition for Review is not normally granted unless
the Region's decision is clearly erroneous or involves an exercise of discretion or policy that is
important and therefore should be reviewed as a discretionary matter. The regulations do not
confer an automatic right of review. In the instant proceeding, Permittee has not shown that the
Region's decision was either clearly erroneous or involved a discretionary matter which warrants
review.
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Issues of Fact/Law; 40 CFR 124.84(b);
40 CFR 124.74; Bifurcated Approach
Evidentiary Hearing;
NPDES Aooeal No.: 84-4
Documents Available:
Decision on Petition for Review, December 26, 1985.
Permittee:
Petrolite Corporation
(Permit No. OK0000841)
Permittee seeks review of the RA's denial of its request for an evidentiary hearing on terms of its
newly reissued wastewater discharge permit. Permittee claims that new permit requirements
regarding changes in sample types and in sampling frequency were made because an EPA
inspector erroneously claimed that stormwater flow from a sludge impoundment was being
pumped into Permittee's settling pond. Upon denial of the hearing request, the RA stated that
the permit as issued was based on information contained in Permittee's own form 2C permit
application, and not on the allegedly erroneous report. The Region did not file a responsive
petition to Permittee's notice of appeal because the Region interpreted the regulations as
requiring a bifurcated proceeding, i.e. sequential decisions on first, the grant of a review, and
second, the outcome.
Issue (I):
Does the question at issue, regarding whether an erroneous report was made and relied on in
setting the new permit terms, present a material issue of fact?
Discussion (I):
Yes. Permittee's claims, as submitted, are questions of fact, entirely appropriate to be considered
by a Regional Administrator in an evidentiary hearing. See 40 CFR 124.74. The Region's
assertions contradict Permittee's assertions, and as such must be tested in a forum where evidence
can be received. A Judicial Officer would ordinarily remand the case and direct the holding of
an evidentiary hearing, since regulations require that factual disputes, even if mixed with legal
questions, are to be decided initially at an evidentiary hearing. If the Region believes Permittee's
claims are unsupported and therefore raise only the facade of a genuine issue of material fact, the
Region's remedy is to present that argument "by affidavit and other materials" in a motion for
summary determination before the hearing's Presiding Officer. See, 40 CFR I24.84(b).
Issue (ID:
Should the two-step bifurcated approach to review and remand, procedurally relied on by the
Region, be employed in this case?
Discussion HP:
No. The bifurcated approach is discretionary under the regulations, and is not generally
employed unless the Petition for Review and the Response reveal a need for further centralized
inquiry after grant of a review. Since administrative clarification of the regulations was provided
subsequent to the filing of the present notice of appeal however, and since the Region apparently
relied on a misunderstanding of the earlier request for briefing, the Region may now brief its
contention that the issues presented are solely legal, should it choose to pursue that contention.
DisDositio_n: Petition for Review granted; briefing schedule established. In the absence of
briefing, the case will be automatically remanded for evidentiary hearing.
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Navigable Waters/Waters of the U.S.; Jurisdiction;
Standard of Review; Sections 301(a), 502(7), 502(12);
Evidentiary Hearing; Ephemeral Stream
NPDES Appeal No.: 84-5
Documents Available:
Order Denying Petition for Review, August 5, 1983.
Permittee:
United Nuclear-Homes take Partners
Grants, New Mexico
(Permit No. NM-0020389)
Background:
Permittee appeals the RA's Initial Decision in which it was concluded that Permittee's discharges
of mineshaft water from its uranium mines to an arroyo are subject to the CWA requirements
governing NPDES permits. Permittee argues that the RA's decision unlawfully expands EPA's
jurisdiction under the CWA to include its discharges. Permittee's objections center on the fact
that the jurisdictional requisites were deemed to have been fully satisfied notwithstanding the
fact that there is no regular or periodic continuity of flow between the point of discharge and the
point where navigable-in-fact waters are reached; and that, in portions of the channel, the water
normally only flows underground (by migration through the alluvium underlying the course of
the surface channel), and may take centuries before reemerging as part of the surface flow.
Issue (D:
Should a petition for review be granted when the Initial Decision is neither clearly erroneous nor
involves an exercise of discretion or policy which is important and which should be reviewed as a
discretionary matter?
Discussion (I):
No. The regulations do not confer an automatic right to have the Initial Decision reviewed on
appeal. The burden of demonstrating that the permit should be reviewed is on the person
petitioning for review.
Issue (in:
Is the ephemeral stream (arroyo), into which Permittee's mineshaft water is discharged, part of
the "waters of the United States" under CWA §502(7), thus making the discharges subject to the
NPDES permit requirements of the §301 (a)?
Discussion (II):
Yes. Under various court decisions, the definition of "navigable waters" under §502(7) of the
statute is to be given the broadest possible interpretation consistent with constitutional principles.
EPA's jurisdiction has been construed to specifically embrace discharges of pollutants into
normally dry arroyos where water which might flow therein could reasonably end up in any body
of water with some public interest, including underground waters.
The RA found that surface flow does occasionally occur, albeit on an average of not more than
once every five years, thereby providing a surface connection independent of the underground
flow. The RA also found that water in a connecting arroyo, including its underground
component, could affect interstate commerce by its effects on pasturage and water supplies for a
downstream cattle ranch. Thus, the Initial Decision cannot be termed "clearly erroneous."
Disposition: Petition for Review denied.
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Standard of Review;
Evidentiary Hearing;
40CFR 124.91(a)(l);
Memorandum of Agreement;
Historic Preservation;
16U.S.C. 470£j_sj£fl.;
40 CFR 122.49
NPDES Appeal No.: 84-6
Documents Available:
Order Denying Review, May 16, 1986.
Permittee:
North American Coal Corporation
(Permit No. TX0092134)
Background:
Permittee seeks review of the RA's decision denying Permittee's request for an evidentiary
hearing to contest the incorporation of the terms of a Memorandum of Agreement (MOA)
relating to historic preservation into the permit conditions.
Issue:
By incorporating the terms of an MOA relating to historic preservation into the permit
conditions, did the RA abuse his discretion, thus warranting review of the decision to deny an
evidentiary hearing?
Discussion:
No. Review by the Administrator of an RA's decision to deny an evidentiary hearing on a
permit is granted only when there has been clear error or abuse of discretion. 40 CFR
§124.91(a)(l). Neither of these conditions applies.
The site preservation condition contested by Permittee was placed in the permit to comply with a
regulatory directive which requires the RA, "before issuing a [permit], to adopt measures when
feasible to mitigate potential adverse effects of the [permitted] activity" to historic sites. 40 CFR
§122.49. This regulation reflects the mandate of a separate federal statute aimed at preservation
of historic places and properties. Sfifi 16 U.S.C. 470 si sea. In its present form, it also reflects
the settlement agreement in NRDC v. EPA^ which Permittee cites to support its position.
Although this regulation does not require the RA to record site-protection measures in the
permit, neither does it forbid him to do so. In no way has the combining of the documents been
shown to be prejudicial to Permittee.
Disposition: Petition for Review denied.
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NPDES Appeal No.: 84-7
Documents Available:
Correspondence between Chief Judicial Officer and Counsel for Appellant, September 15, 1987.
Permittee:
Allied Corporation
(Docket! No. LA 0000329)
Background:
Correspondence acknowledges EPA's receipt of Permittee's letter withdrawing the petition for
review.
Disposition: Appellate file closed as of 9/15/87.
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NPDES Appeal No.:
Documents Availably
Correspondence between Chief Judicial Officer and Regional Hearing Clerk, October 19, 1984.
Permittee:
National Distillers Chemical Corporation
(Docket No. TX0006297)
Disposition: Correspondence from EPA to the Region acknowledges that the appeals file should
be closed since no appeal was filed, despite an extension of time.
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40 CFR§ 124.74 (1984);
40 CFR§ 124.75 (1984);
40 CFR §124.76 (1984);
Evidentiary Hearing;
Material/Relevant Issues
of Fact;
Raising/Prior Submission
of Issues;
40 CFR 415.292 (1984);
Brine Discharge;
40 CFR 124.56 (1984);
Indicator Pollutant
Limitations;
Good Cause Exemptions;
Chlorine Limits;
Section 308;
Information-Gathering
Requirements;
Modifying Monitoring
Requirements;
pH Ranges
NPDES Appeal No.: 84-8
Documents Available:
Order Remanding Proceedings, September 3, 1985.
Permittee:
Great Lakes Chemical Corporation
(Permit No. AR-0001171)
Background:
Permittee, operator of a bromide production facility, seeks review of the RA's decision to deny
Permittee's request for an evidentiary hearing to contest certain limitations and monitoring
requirements for discharges of once-through cooling water and stormwater runoff, which were
included in its draft and final permits. To cool its production machinery, Permittee draws water
from sparta sands wells on its property, and discharges this "once-through" cooling water into a
bayou.
Issue (I):
What is required in order for a request for an evidentiary hearing or an NPDES permit to be
granted?
Discussion (D:
To be granted, a request for an evidentiary hearing on an NPDES permit must conform to the
formal requirements of 40 CFR §124.74, and must set "forth material issues of fact relevant to the
issuance of the permit." 40 CFJR §124.75 (1984). Moreover, pursuant to 40 CFR §124.76, the
only issues which may be considered at an evidentiary hearing on a permit are those issues
formerly submitted to the administrative record "as part of the preparation of and comment on
the draft permit unless good cause is shown for the failure to submit them." In all instances, the
formal requirements of §124.74 were met. However, the remaining requirements are discussed
below as they pertain to each issue raised by Permittee.
Issue (ID:
Has the Permittee satisfied these requirements for the five issues listed below?
Discussion (11):
(I). Net Conductivity Limits. Yes. Permittee raises the issues of whether the permit's net
conductivity limits are attainable, whether net conductivity testing is a true indicator of brine
contamination, and whether an alternative, less expensive, more accurate method exists for
detecting brine contamination in the facility's effluent.
The issues raised are material and relevant to the Region's imposition of net conductivity testing
requirements in the permit and, thus, meet the materiality/relevancy requirement of 40 CFR
§124.75. These issues were not raised during the comment period on the draft permit, as required
by 40 CFR §124.76 (1984); however, good cause exists in this instance for Permittee's failure to
raise the issues during the comment period. Good cause exists where, among other things, the
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relevance or materiality of the issues could not have been reasonably anticipated at the time of
the comment period. 40 CFR §124.76 (1984).
(2). Residual Chlorine Limits. Yes. Permittee raises the issue of whether the bromide
production process utilized by Permittee eliminates the possibility of entry of elemental chlorine
into the once-through cooling water or into the storm water runoff.
This issue meets the relevancy/materiality requirement of 40 CFR §124.75 (1984). Moreover,
Permittee previously raised this issue during the comment period on the draft permit, thus
satisfying the prior submission of issues requirement of 40 CFR §124.76 (1984).
(3). Oil and Crease Limitations. No. Permittee raises the issue of whether oil and grease testing
of the cooling water discharge should be totally eliminated or reduced from two tests per week to
one test per quarter because any oil and grease in the cooling water, according to Permittee, will
show up in the total organic carbon (TOC) tests already required by the permit.
Permittee is not entitled to subsequently raise this issue at an evidentiary hearing, since
Permittee failed, without good cause, to raise this issue in its comments on the draft permit, 40
CFR §124.76 (1984).
(4). Biomonitoring. No. Permittee raises the issue of whether the testing requirement should be
reduced from quarterly to annually after the first full year, provided that the first year's
quarterly tests indicate that no problem exists.
Under CWA §308, EPA is authorized to impose reasonable information gathering requirements on
the owner or operator of any point source (e.g., in an NPDES permit). Thus, for an evidentiary
hearing to be granted to a Permittee seeking modification of a permit's monitoring requirements,
Permittee must submit a claim, together with supporting justification, that the permit's
requirements should be reduced (or otherwise modified) because they are unreasonable. This
submission must be made in a party's comments on the draft permit (e.g., by submission to the
administrative record, 40 CFR §124.76 (1984)), and should be reiterated in a party's request for
an evidentiary hearing. Merely asserting that biomonitoring requirements should be reduced
without even a claim that the permit's existing biomonitoring requirements are unreasonable does
not raise a material issue of fact relevant to a permit decision as required by 40 CFR §124.75
(1984). In this instance, Permittee has submitted no claim (or supporting justification) in its
comments on the draft permit or in its request for an evidentiary hearing that the permit's
biomonitoring requirements are unreasonable. Therefore, Permittee's claim in its petition for
review before the Administrator that the permit's biomonitoring requirements are unreasonable is
untimely.
(5). pH Range Requirements. Yes. Permittee asserts that modification of the pH range for
stormwater runoff is necessary to allow some leeway for errors in testing methods. Permittee also
states that (he pH factor of rainfall in the area is "believed to be less than 5 pH" while the permit
range is between 6.0 and 9.0 standard units. These issues appear to be material issues of fact
relevant to the imposition of the permit's pH limitations, they were raised during the comment
period, and Permittee has estimated the hearing time to be only 15 minutes. Thus, Permittee
should be provided the opportunity for an evidentiary hearing on this issue.
Disposition:
Decision denying Permittee's request for an evidentiary hearing is reversed in part and affirmed
in part; the proceeding is remanded to provide an. evidentiary hearing on specifically identified
issues relating to the permit's net conductivity, residual chlorine, and pH range limits and
monitoring requirements.
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Withdrawal of Permit Application
NPD1S Appeal No.: 84-9
Documents Available:
Order Denying Petition for Review, November 2, 1984.
Permittee:
Lower Colorado River Authority, Powell Bend Mine
(Permit No. TX0092S76)
Background
Petitioners (the City, a public interest group, and two individuals) seek review of the RA's partial
denial of their request for an evidentiary hearing. Since the permit applicant has subsequently
withdrawn its permit application, the issues raised in the petition for review are moot.
Disposition: Petition for Review denied.
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Section 309; Administrative Orders;
Enforcement Authority; 40 CFR 124.74 (1983)
Evidentiary Hearings;
NPDES Appeal No.: 84-10
Documents Available:
Order Denying Petition for Review, November 2, 1984.
Permittee:
Peabody Coal Company
(Permit No. AZ0022179)
Background:
Permittee seeks review of the RA's denial of its request for an evidentiary hearing. The RA
noted that Permittee's request was being denied "because, under applicable law, there is no right
to an evidentiary hearing to contest an order issued pursuant to EPA's enforcement authority
under §309 [of the CWA]."
Issue:
Does Permittee have the right to an evidentiary hearing to contest an administrative order issued
pursuant to EPA's enforcement authority under CWA §309 to remedy violations of an NPDES
permit?
Discussion:
No. 40 CFR Part 124 (1983) contains regulations for issuing, revoking, modifying and reissuing
NPDES Permits. Subpart E of the regulations provides that within 30 days following service of
the Region's final permit decision, Permittee may request an evidentiary hearing to reconsider or
contest that decision. 40 CFR §124.74. In the instant case, however, Permittee is not contesting
the Region's final permit decision (or modification thereof). Therefore, the hearing procedures
in Subpart E are not applicable.
Disposition: Petition for Review denied.
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40 CFR 124.75;
40 CFR 124.91 (a);
Standard of Review;
Stays of Enforcement;
Evidentiary Hearing;
Forums;
Effluent Guidelines
NPDES Appeal No.! 84-11
Documents Available:
Denial of Review, July 7, 1986.
Permittee:
Schuylkill Metals Corporation
(Permit No. LA0004464)
Background:
Permittee, a secondary lead smelting facility operator, appeals the RA's denials of a stay and of
an evidentiary hearing. Permittee had requested the RA to stay enforcement of its permit
pending a Fourth Circuit decision on litigation challenging the secondary lead smelter effluent
guidelines. When this request was denied. Permittee requested an evidentiary hearing to contest
limits set on lead, zinc, ammonia, total suspended solids, arsenic, and pH.
Issue m:
Did the Region improperly deny Permittee's request to stay enforcement of the permit pending
litigation?
Discussion (It:
No. The issue of the stay is now moot since the Fourth Circuit proceedings have been concluded
with a decision upholding the guidelines upon which most of the challenged limits are based.
Issue (ID:
Did the Region improperly deny Permittee's request for an evidentiary hearing on the grounds
that the request posed no real issues of material fact under 40 CFR 124.75?
Discussion.:
No. The Region's decision has not been shown to contain clear error or constitute an abuse of
discretion. 40 CFR §124.91 (a). The petition stands as a challenge to the guidelines, made in an
inappropriate forum.
Disposition: Petition for Review denied.
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Legal Issues;
Forums;
Standard of Review;
OGC No. 58 (March 2, 1977);
Section 301(b)(l)(C);
40 CFR 124.91(1983);
State Certification;
Effluent Limitations;
40 CFR 124.74;
40 CFR 124.75
NPDES Appeal No.: 84-12
Documents Available:
Order Granting Limited Review, March 27, 1985.
Final Order, November 6, 1985.
Permittee:
Ina Road Water Pollution Control Facility,
Pima County, Arizona
(Permit No. AZ0020001)
Background:
Permittee seeks review of the RA's decision denying a request for an evidentiary hearing
regarding the effluent limitations of a permit issued for discharges from a county POTW. The
permit set an effluent limitation for copper which was more stringent than the limitation set forth
in the State letter of certification. The Region's and the State's limitations were based upon
differing interpretations of the State water quality standard regulations. Permittee petitions the
Administrator to review the permit and relax the permit's copper limitation by setting it at the
level set forth in the State's certification letter. It also appears that Permittee's petition contains
an alternative request to reverse the RA's denial of an evidentiary hearing, and remand this
proceeding to an ALJ for such hearing.
Issue (I):
Did the RA in concluding that the proper interpretation of the State water quality standard
regulations presented a legal issue rather than a factual issue, properly deny Permittee's request
for an evidentiary hearing to review the permit's copper limitation?
Discussion (D:
Yes. Under NPDES regulations, an appeal to the Administrator, rather than an evidentiary
hearing before an ALJ, is the appropriate forum for resolution of legal issues when there are no
disputed issues of fact 40 CFR §§ 124.74 and 124.75.
Issue an:
Was the Region's interpretation of the specific water quality standard in question clearly
erroneous, or did it involve an exercise of discretion or policy which is important and which
should be reviewed as a discretionary matter?
Discussion
No. The proper interpretation of the relevant portion of the State water quality standard is a
close question. Even the State Attorney General's office recognized in an interoffice
memorandum that the water quality standard in question is ambiguous and susceptible to two
interpretations, i.e. the one favored by the Region and the one favored by the State. Thus, the
Region's adoption of one interpretation over the other cannot be categorized as clear error.
Moreover, the proper interpretation of the water quality standard in question does not involve an
exercise of discretion or policy which is important and which should be reviewed as a
discretionary matter.
Issue
Did the Region commit clear error by failing to give deference to the State's interpretation of its
own water quality standard regulations?
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Discussion
No. OGC No. 58 supports the position that the Agency may independently interpret and apply
State Water quality standard so as to ensure compliance with CWA §301(b)(l)(C). Nevertheless,
whether the Region should have given deference to the State's interpretation is an important
policy issue. Accordingly, pursuant to 40 CFR §124.91 (1983), this issue will be reviewed as a
discretionary matter.
Disposition:
Petition is granted and review is limited to two questions: (I) whether the Region is legally
authorized to interpret a State's water quality standard regulations in the face of a conflicting
interpretation by the State, and (II) assuming such legal authority exists, whether and under what
circumstances the Region should exercise such authority.
-------
40 CFR 124.74 (1984);
Evidentiary Hearings;
Bifurcated Approach;
Issues of Fact/Law
NPDES Appeal No.: 84-13
Documents Available:
Decision on Petitions for Review, April 2, 1985.
Permittee:
446 Alaska Placer Mines, more or less
(Permit No. AK0029467, et al.)
Background:
Permittees and petitioners seek review of the RA's decisions to grant in part and deny in part
various evidentiary hearing requests raising issues of fact and law. The hearing requests were
denied to the extent they raised issues of law; they were granted to the extent they raised issues
of fact.
Issue:
Should legal issues be considered in an evidentiary hearing along with factual issues (i.e., when
legal questions are not the only issues raised)?
Discussion:
Yes. The Region erred when it excluded legal questions from consideration at the evidentiary
hearing. The issues to be considered at the hearing include all legal and factual questions that are
relevant to the permit decision, provided they are raised in a timely fashion and in the manner
prescribed in the regulations; it is error to exclude legal questions from consideration at such a
hearing on the sole grounds that they are legal in nature, not factual.
The bifurcation of permit proceedings -- with factual issues being referred to an ALJ for a
hearing, and simultaneously, legal issues being referred to the Administrator for consideration on
appeal -- is inconsistent with applicable regulations under 40 CFR §§ 124.74 and 124.75. Current
rules governing evidentiary hearings for NPDES permits supercede earlier rules which separated
legal issues from factual issues by requiring the referral of issues of law to the General Counsel,
and which expressly prohibited consideration of legal issues in an evidentiary hearing. Compare
40 CFR Part 124 (Subpart H) (1979) with 40 CFR Part 124 (Subpart E) (1984).
Region X claims that its position is supported by policy considerations. These are not
compelling. Delay is not a valid policy consideration, and consistency is assured because
decisions rendered in an evidentiary hearing are subject to review by the Administrator. 40 CFR
§124.91 (1984).
Disposition: Matters remanded.
* See NPDES Appeal No. 85-9 regarding this Permit Number.
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INDEX
Appeal No.
100% Compliance 85-14, 85-15, 85-16
Administrative Procedure Act 85-14, 85-15, 85-16
Affirmative Defense/Dismissal Chemical, 1985
Amending Regulations 85-14, 85-15, 85-16
Anti-Backsliding Requirements 85-3
Automatic Denials : 85-13
Best Available Technology 85-21
Biomonitoring 85-22
Compliance 85-3
Confidence Interval/Categorical Guidelines 85-3
Discharge Requirements 85-3
Evidentiary Hearing 85-1, 85-3, 85-7, 85-11, 85-21, 85-22, 85-25
Factual/Legal Issues Alaska Pulp, 1985
Final Decisions 85-6
Forums 85-14, 85-15, 85-16, 85-25
Fundamentally Different Factors Variance Alaska Pulp, 1985
Informal Appeals 85-13
Interlocutory Appeal Chemical, 1985
Legal Issues 85-21
Monitoring Frequency 85-2
Motions/Response Time Chemical, 1985
Policy Challenges 85-14, 85-15, 85-16
Quality Assurance Provisions 85-1
Regional Administrator 85-6
Revised Effluent Limits 85-26
Standard of Review 85-1, 85-2, 85-7, 85-11, 85-22, 85-25
State Water Quality Management Plan 85-25, 85-26
Stipulations 85-17
Stormwater Discharges 85-21
Time Extension 85-13
Variances 85-6
Wastewater Discharge Limits 85-25
Water Quality Standards 85-3
General Counsel Decisions
OGC No. 21 (June 21, 1975) 85-2
Regulations
40 CFR 22.16(b) Chemical, 1985
40 CFR 122.4(g) 85-25
40 CFR 122.41(a) 85-14, 85-15, 85-16
40 CFR 122.44(d) 85-25
40 CFR 124.5(b) (1984) 85-13
40 CFR 124.6 85-23
40 CFR 124.74(bXl) 85-3
40 CFR 124,91 (1984) 85-1
40 CFR 124.9l(a) 85-25
40 CFR 124.9l(a)(l)(i) Alaska Pulp, 1985
40 CFR 124.91(a)(lXii) Alaska Pulp, 1985
40 CFR 124.9l(c)(l) (1984) 85-7, 85-11
40 CFR 131.5 85-25
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40 CFR 131.6 85-25
40 CFR 131.21 '. 85-25
CWA Section Appeal Nc^
Section 208(e) 85-25
Section 303(c) 85-25
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KEY WORD TABLE
NPPES Appeal No./Permitfge
85-1 /Caribbean Gulf Refining Corp. (CARECO)
(Permit No. PR-000370)
Standard of Review;
Evidentiary Hearing;
Quality Assurance Provisions;
40 CFR 124.91 (1984)
85-2/CIty of Middlesboro, Kentucky
(Permit No. KY0027235)
Standard of Review;
OGCNo. 21 (June 21, 1975);
Monitoring Frequency
85-3/Champion International Corp.
(Permit No. TX0053023)
Evidentiary Hearing;
Water Quality Standards;
Anti-Backsliding Requirements;
Discharge Requirements;
8S-6/Alaska Pulp Corporation
Variances;
Regional Administrators;
Final Decisions
85-7/Wald Manufacturing Co., Inc.
(Permit No. KY0000477)
Standard of Review;
Evidentiary Hearing;
40 CFR I24.91(c)(l) (1984)
85-8/Robert Ault
(Permit Nos. AK0041122, and AK0025381)
85-9/DeI Ackels
(Permit No. AK0029467)
85-11/Estech, Inc. (Duette Mine)
(Permit No. FL0036609)
Standard of Review;
Evidentiary Hearing;
40 CFR 124.91(cXD (1984)
Compliance;
Confidence Interval/Categorical Guidelines;
40 CFR 124.74(b)(l)
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85-13/Gulf Chemical and Metallurgical Corporation
(Permit No. TX0034738)
Time Extension;
Informal Appeals;
Automatic Denials;
40 CFR 124.5(b) (1984)
85-14, 85-15, 85-16/Shell Chemical Company
(Permit Nos. LA0005762, LA0050962 and TX0004863)
100% Compliance;
40 CFR 122.41 (a);
Policy Challenges;
85-17/Allied Corporation
(Orange, TX)
(Permit No. TX0007897)
Stipulations
85-IS/AT&T Teletype Corporation
(Permit No. AR0001449)
85-19/Gulf Coast Waste Disposal Authority
(Permit No. TX0052591)
85-2I/PPG Industries, Inc.
(Permit No. TX0008931)
Evidentiary Hearing;
Legal Issues;
85-22/Kaiser Aluminum tt Chemical Corp.
(Permit No. LA0002909)
Standard of Review;
Evidentiary Hearing;
Biornonitoring;
85-23/ReyaoIds Metals Company
(Permit No. TX0030597)
40 CFR 124.6
85-25/BIytheville Sewer Commission
(Permit No. AR0022560)
Standard of Review;
Evidentiary Hearing;
Forums;
Amending Regulations;
Forums;
Administrative Procedure Act
Best Available Technology;
Stonnwater Discharges
Section 208(e);
Section 303(c);
40 CFR 122.4(g);
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State Water Quality
Management Plans;
Wastewater Discharge
Limits;
85-26/Forrest City Water Utility
Forrest City, AK
(Permit No. AR0020087)
State Water Quality
Management Plan;
Revised Effluent Limits
/Alaska Pulp Corporation
(Permit No. AK000053-1)
Factual/Legal Issues;
Fundamentally Different
Factors Variance;
/Chemical Waste Management, Inc.
(NPDES No. 09-84-0037)
Interlocutory Appeal;
Motions/Response Time;
40 CFR I22.44(d);
40 CFR 124.91 (a);
40 CFR 131.21;
40 CFR 131.5;
40 CFR 131.6
40 CFR I24.91(a)(l)(i);
40 CFR I24.91(a)(l)(ii)
Affirmative Defense/Dismissal;
40 CFR 22,16(b)
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Standard of Review;
Evidentiary Hearing;
Quality Assurance Provisions;
40 CFR 124.91 (1984)
NPDES Anneal No.: 85-1
Documents Available:
Denial of Petition for Review, November 6, 1985.
Permittee:
Caribbean Gulf Refining Corp. (CARECO)
(Permit No. PR-000370)
Background:
Permittee seeks review of the RA's denial of an evidentiary hearing. Permittee initially requested
an evidentiary hearing to contest two provisions in the permit: one relating to bioassay
monitoring, and the other requiring Permittee to undertake detailed mathematical calculations to
insure the validity and accuracy of data required under the permit (the "quality assurance
provision"). The RA denied Permittee's request on the grounds that Permittee's objections were
legal, rather than factual, in nature. See 40 CFR §124.74 (Note) (1984). Permittee subsequently
withdrew its request for review of the bioassay monitoring provision.
Issue:
Did Permittee meet its burden of showing that the Region committed clear error by including the
quality assurance provision in the permit, or that the inclusion of this provision involves an
exercise of discretion or policy which is important and which the Administrator should review
under 40 CFR 124.91?
Discussion:
No. Nothing in the record shows that the Region's imposition of such requirements in the permit
involved an exercise of discretion which is important and which the Administrator should review.
Moreover, Permittee has failed to show that the Region committed clear error.
Permittee's concern regarding its liability for "faulty arithmetic" is premature, and the Region's
Responsive Petition indicates that Permittee need have little concern that it will suffer criminal
or civil liability should it, in the future, make a sporadic, unintentional math error. Thus,
Permittee's concerns regarding the liability it may be subjected to for future violations of its
permit's quality assurance requirements are both premature and remote. Accordingly, Permittee's
concerns in this regard do not constitute an adequate basis for granting review.
Disposition: Petition for review denied.
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Standard of Review;
OGC No. 21 (June 21, 1975);
Monitoring Frequency
NPDES Appeal No.: 85-2
Documents Available:
Initial Decision, December 18, 1984.
Order Denying Review, May 2, 1985.
Permittee:
City of Middlesboro, Kentucky
(Permit No. KY0027235)
Background:
The Region seeks review of an Initial Decision regarding a permit issued for a POTW. The
permit required the City to monitor its POTW's influent and effluent for various metals on a
twice-a-month and weekly basis, respectively. Upon finding that the Region's justification for
setting these specific requirements was without scientific or legal substance, the presiding officer
rejected these higher levels and reduced the permit's monitoring frequency requirements for the
metals in question to once a month. Since monthly monitoring data introduced at the hearing
showed the presence of the metals to be consistently below permit limits (with one notable, and
one minor, exception), the presiding officer directed the Region to "seriously consider a re-
evaluation of the permit in light of the two years of data that it now has at its disposal and . . .
perhaps eliminate the limitations and associated monitoring for several of the metals in question."
Issue m:
Did the presiding officer commit clear error in rejecting the high monitoring frequency
requirements originally contained in the permit?
Discussion (IV
No. The Region failed to present any evidence of scientific or legal substance to support the
propriety of imposing the specific weekly and bi-monthly (higher than usual) monitoring
requirements at issue. A Petition for Review of an Initial Decision is not normally accepted
unless the decision is clearly erroneous or involves an exercise of discretion which is important
and should be reviewed as a discretionary matter. The Region has not sustained its burden of
demonstrating that the Initial Decision was clearly erroneous, and no reason has been presented
for taking discretionary review.
Issue fit):
Did the presiding officer commit clear error in choosing once-a-month as the appropriate
monitoring frequency requirement for the metals in question?
Discussion (II):
No. Whether a particular monitoring frequency level is appropriate depends upon whether it is
reasonable in a given set of circumstances. In this case, there is ample evidence in the record to
support once-a-month as a reasonable monitoring frequency requirement for the metals in
question.
Disposition: Petition for Review denied. The Region is directed to redraft the permit by
reducing the influent and effluent monitoring frequency requirements for various metals to once-
per-month. Moreover, the Region should seriously consider whether a re-evaluation of the
permit, in the light of the two years of data it now has at its disposal, and perhaps the elimination
of monitoring requirements for several of the metals in question is warranted. The presiding
officer's Initial Decision stands as the final decision, as modified by the Administrator to remove
two gratuitous findings.
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Evidentiary Hearing;
Water Quality Standards;
Anti-Backsliding Requirements;
Discharge Requirements;
Compliance;
Confidence Interval/Categorical Guidelines;
40 CFR 124.74(b)(l)
NPDES Appeal No.: 85-3
Documents Available:
Decision on Appeal, June 2, 1986.
Permittee:
Champion International Corp.
(Permit No. TX0053023)
Background:
Permittee seeks review of the RA's denial of an evidentiary hearing to challenge the Region's
refusal to increase the daily maximum level set for ammonia-nitrogen. The RA denied a hearing
because Permittee raised no genuine factual issue concerning the Region's reasons for refusing
the increase, which were that (i) an increase would worsen water quality in the receiving waters,
and (ii) it would violate NPDES anti-backsliding requirements.
Issug:
Do significant factual and legal issues exist regarding the Region's reasons for refusing to
increase the daily maximum limit set for ammonia-nitrogen, warranting an evidentiary hearing in
this instance?
Discussion:
Yes. Matters which remain significantly at issue include: 1) whether the increase would violate
the water quality standards; 2) whether production changes made by Permittee subsequent to
issuance of its first permit constitute a change of circumstances which would create an exception
to anti-backsliding requirements; 3) whether satisfactory compliance has been achieved by
Permittee with the discharge requirements of the present permit (the Region says it has; Permittee
says it has not), and; 4) whether, if requirements cannot be met consistently, the 95-99%
"confidence interval" of categorical guidelines justifies issuance of the permit, regardless.
Several of these issues are factual, and cannot be decided without presentation of evidence. The
legal questions are related to the factual questions, and must be decided in the same context. 40
CFR §l24.74(b)(l). Thus, an evidentiary hearing is required.
Disposition: Proceeding remanded. An evidentiary hearing is warranted.
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Variances;
Regional Administrators;
Final Decisions
NPDES Appeal No.: 85-6
Documents Available:
Permittee:
Alaska Pulp Corporation
Background:
View of previous RA regarding the* issuance of a fundamentally different factors variance
differed from the view of the current RA.
Iss^g:
Must the RA assume the view of the previous RA with regard to decisions pending when the
transition between RA's occur?
Discussion:
No. A decision by an RA is valid provided that the decision is supported by the record at the
time the decision is made. If the party can demonstrate that a formal decision had been made by
the previous RA, then that party may provide a sound rationale for the implementation of that
decision. However, permittee has failed to demonstrate that a formal decision had been made by
the previous RA.
Disposition:
Review is denied.
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Standard of Review;
Evidentiary Hearing;
40CFR 124.91(c)(l)(l984)
NPDES Appeal No.: 85-7
Documents Available:
Order Denying Petition for Review, August 2, 1985.
Permittee:
Wald Manufacturing Co., Inc.
(Permit No. KY0000477)
Background:
Permittee seeks review of the Region's denial of a request for an evidentiary hearing.
Should a Petition for Review be granted when a decision is not clearly erroneous nor involves an
exercise of discretion or policy which is important and which should be reviewed as a
discretionary matter?
Discussion:
No. The regulations do not confer an automatic right to have a decision reviewed on appeal, 40
CFR 124.91 (1984).
Disposition: Petition for Review denied.
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NPDES Anneal No.: 85-8
Documents Available:
Remand, April 30, 1985.
Permittee:
Robert Ault
(Permit Nos. AK.0041122, and AK.0025381)
Disposition: The matters raised in Permittee's petition for review, to which the Region
responded, are remanded to the Region for action consistent with In Matter of 446 Alaska Placer
Mines. More or Less. NPDES Appeal No. 84-13 (Decision on Petitions for Review, dated April 2,
1985).
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NPDES Appeal No.: 85-9
Documents Available:
Remand, April 30, 1985.
Permittee:
Del Ackels
(Permit No. AK0029467)
: The matters raised in Permittee's petition for review, to which the region responded,
are remanded to the Region for action consistent with In the Matter of 446 Alaska Placer Mines. '
More or Less. NPDES Appeal No. 84-13 (Decision on Petitions for Review, dated April 2, 1985).
[Note: According to Footnote #2 of the Remand, Permit No. AK0029467 was erroneously
referenced in the caption of NPDES Appeal No. 84-13, for the ruling in that appeal was rendered
before the instant appeal was received.]
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Standard of Review;
Evidentiary Hearing;
40CFR 124.91(c)(l)(1984)
NPDES Appeal No.: 85-11
Documents Available:
Order Denying Petition for Review, August 2, 1985.
Permittee:
Estech, Inc. (Duette Mine)
(Permit No. FL0036609)
Disposition: Pursuant to 40 CFR §124.91(c)(l) (1984), review of the denial of Permittee's request
for an evidentiary hearing is declined.
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Time Extension;
Informal Appeals;
Automatic Denials;
40 CFR 124.5(b)(l984)
NPDES Appeal No.: 85-13
Documents Available:
Order Granting Extension of Time and Suspending Time Limit in §124.5{b), June 17, 1985.
Permittee:
Gulf Chemical and Metallurgical Corporation
(Permit No. TX0034738)
Background:
Permittee informally appealed the RA's decision to deny its request for modification of its
NPDES permit. By motion, the Region stated its opposition to review of the decision, and
requested an extension of time to respond to the appeal. Permittee did not respond to the motion.
The motion for extension of time is granted.
Is^ue:
Given that the extension of time has been granted, should the time limit in §124.5(b) for
responding to informal appeal requests be suspended in this instance?
Discussion:
Yes. Informal appeals are considered denied if no action is taken on the request within 60 days
of receipt of the appeal. 40 CFR §124.5(b) (1984). However, because the Region's response to
the appeal will not be received until well after the 60 day time period expires, the time limit in
§124.5(b) providing for an automatic denial of an informal appeal if no action is taken is
suspended.
Disposition: The informal appeal is not considered automatically denied under 40 CFR 124.5(b).
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100% Compliance;
40 CFR 122.41 (a);
Policy Challenges;
Amending Regulations;
Forums;
Administrative Procedure Act
NPDES Appeal Nos.: 85-14,85-15,85-16
Documents Available:
Final Agency Decision, Correspondence dated October 20, 1987.
Permittee:
Shell Chemical Company
(Permit Nos. LA0005762, LA0050962 and TX0004863)
Background:
Permittee appeals the RA's denial of an evidentiary hearing to challenge permit terms. The RA
denied the hearing on grounds that no significant facts were in dispute. In an earlier decision on
that appeal, the Administrator affirmed part of the RA's finding, and, except for the "100%
compliance issue," reversed and remanded the rest, directing that an evidentiary hearing be held
on matters where it was found that Permittee had in fact demonstrated significant factual
disputes. The "100% compliance" dispute was found to be devoid of factual issues, but
"important" as a matter of law and/or policy, and therefore appropriate under regulations for the
Administrator's review. §££ 40 CFR § 124.9 l(a)(l). At Permittee's request, oral argument on
"100% compliance" was held, and extensive briefing was provided.
Issue (I):
Did the RA properly deny Permittee's request for an evidentiary hearing regarding the 100%
compliance issue?
Discussion (I):
Yes. A Region is not free to make unilateral changes in general Agency policy embodied in the
regulation. Permittee's raising of the 100% compliance issue is in reality a request to reconsider
the existing regulations, e.g., 40 CFR §122.41 (a), and therefore should be raised, if at all, in the
context of a rulemaking proceeding. Permittee may do so by formally petitioning the Agency
pursuant to the Administrative Procedure Act, 5 U.S.C. §553(e), to seek an amendment to or
repeal of existing regulations. Furthermore, based on the record, the Administrator
recommended against granting any petition to amend the 100% compliance requirement.
Issue (II):
Should the Administrator exercise his discretion to amend the policy decision requiring that
Permittee achieve 100% compliance with the NPDES permits' effluent limitations, particularly in
light of the proliferation of citizen suits under CWA Section 505?
Discussion (ID:
No. No substantial legal dispute exists in this instance. The policy at issue is embodied in the
100% compliance regulation, not some discretionary exercise of policy by an Agency official in
the course of considering a particular permit or taking other discretionary action. The Agency
regulation upon which the 100% compliance requirement is based represents a policy decision—a
way chosen by the Administrator to implement the CWA, rather than a mandate proceeding from
the Act. When policy which underlies regulations is discretionary and in accordance with law, it
is not ordinarily challenged through administrative appeal. Within EPA, however, where the
Administrator is the final deciding official of both policy and administrative appeals, policy may
be reconsidered upon appeal in certain cases. 40 CFR §124.91(a)(l) and (a)(3).
Review by the Administrator of the policy underlying the regulation is inappropriate in this
appeal since an alternative for seeking amendment of the regulation exists—petitioning for
rulemaking under the Administrative Procedure Act. Permittee's claim that increased citizen
suits will increase the possibility of penalties for unavoidable violations is speculative and does
-------
not constitute a change in circumstances which calls for the Administrator to rethink his original
policy call. To expect the Agency to effect a major policy change to allay what appear to be
unfounded anxieties is unreasonable.
Disposition: The RA's denial of Permittee's request for an evidentiary hearing on the 100%
compliance issue was affirmed. 40 CFR 124.91(d). The Region's requirement of 100%
compliance with the permits at issue will not be disturbed.
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Stipulations
NPDES Appeal No.: 85-17
Documents Available:
Order Dismissing Notice of Appeal and Petition for Review, October 7, 1986.
Permittee:
Allied Corporation
(Orange, TX)
(Permit No. TX0007897)
Background:
Permittee filed a Notice of Appeal and Petition for Review requesting the Administrator to
review the RA's Denial of Permittee's request for an evidentiary hearing. Subsequently,
Permittee and the Region executed a "Stipulation and Agreement" that purports to resolve all
matters at issue. As a result of the "Stipulation and Agreement," Permittee has withdrawn its
appeal.
Disposition: Permittee's appeal is dismissed.
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NPDES Anneal No.: 85-18
Documents Available:
Order, December 2, 1986.
Permittee:
AT&T Teletype Corporation
(Permit No. AR0001449)
Dispositjpjy Upon motion of the Region, and for good cause. Permittee's petition for review is
dismissed.
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NPDES Appeal No.: 85-19
Documents Available:
Order Dismissing Petition for Review, February 20, 1987.
Permittee:
Gulf Coast Waste Disposal Authority
(Permit No. TX0052591)
Background:
Permittee and the Region entered into a Stipulation and Agreement.
Disposition: Upon motion by the Region, Permittee's Petition for Review is dismissed.
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Evidentiary Hearing;
Legal Issues;
Best Available Technology;
Stormwater Discharges
NPDES Appeal No.: 85-21
Documents Available:
Order on Petition for Review, December 30, 1985.
Permittee:
PPG Industries, Inc.
(Permit No. TX0008931)
Background:
Permittee seeks review of the RA's denial of a request for an evidentiary hearing on two legal
issues regarding Permittee's reissued permit which limits the amount of lead to be discharged
from its former Tetraethyllead (TEL) production facility. [TEL production was discontinued at
the facility, and only ethylene glycol is now produced there.] Decontamination and dismantling
of the facility's lead production equipment left behind a residue of lead which is washed by
stormwater into Permittee's collection system. Overflows are discharged through an outfall into a
river. Permittee contends that the lead limitation is presently economically non-achievable.
Underlying Permittee's first legal issue was the question of whether the stormwater discharged
from the facility had been regulated as process wastewater instead of stormwater runoff. The
Region explained that in past correspondence, references to "process water" were merely a way of
describing the means of original contamination; the flow at issue had been considered and
regulated as stormwater.
Issue m:
Did the Region abuse its discretion in using a best available technology standard, rather than a
best management practices standard, for stormwater discharged from the facility?
Discussion (I):
No. The Region did not err. The use of BATEA and BMP in an NPDES permit are not mutually
exclusive. Stormwater which enters a waterway through a point source is properly regulated by
an NPDES permit. NPDES permits are properly developed by use of best professional judgement
(BPJ) when effluent guidelines, as here, are not available. The CWA requires subsequent to July
1, 1984 that discharges including certain stormwater discharges be regulated in accordance with
best available technology economically achievable. BPJ permits are properly developed under
criteria established at 40 CFR §125.3(d).
The Region acknowledged that best management practices alone may be required when the
numerical limits which are the usual end product of BATEA are determined infeasible. In the
instant proceeding, however, the Region concluded that numerical limits are both technologically
and economically achievable. The Region also determined that use of best management practices
alone would not suffice at this stage to accomplish adequate clean-up procedures.
Issue fin:
Should a petition for review generally be granted when only legal issues are raised regarding the
denial of an evidentiary hearing?
Discussion (ID:
No. An evidentiary hearing is appropriate only when factual questions are raised in a challenge
to a permit.
Disposition: Petition for Review denied, and matter remanded for action in accordance with the
decision.
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Standard of Review;
Evidentiary Hearing;
Biomonitoring;
NPDES Appeal No.: 85-22
Documents Available:
Final Agency Decision, Denial of Review, August 13, 1986.
Permittee:
Kaiser Aluminum & Chemical Corp.
(Permit No. LA0002909)
Background:
Permittee seeks review of the RA's denial of a request for an evidentiary hearing to challenge a
permit's biomonitoring requirement. At the time the permit was issued, the facility, which had
produced alumina ore by refining bauxite, was shut down. The permit requires, injfcr alia, that
Permittee biomonitor periodically the effluent from three outfalls to assess toxicity of the
discharge. A biomonitoring test protocol is specified. Permittee argues that the biomonitoring
requirement is unreasonable, constitutes arbitrary action, and generally exceeds EPA's authority
under the CWA.
Issue (I):
Has Permittee demonstrated that the denial of the hearing on the grounds that no real disputes
about material facts existed, 40 CFR 124.75, constitutes clear error or abuse of discretion,
including an exercise of policy which requires review under 40 CFR 124.91?
Discussion (I_):
No. The Region is correct in its conclusion, and the RA did not err in declining to conduct a
hearing.
Issue (ID:
Is the permit's requirement for biomonitoring of effluent unreasonable, arbitrary, or
unauthorized by the CWA?
Discussion (ID:
No. Biomonitoring of effluent is clearly authorized by the CWA and its implementing
regulations. The Region's policy of requiring biomonitoring on a case by case basis where
effluent is expected to contain unanalyzed toxics is not an unadopted rule, but a proper exercise
of the RA's discretion.
While the test method at issue has not been formally promulgated as part of EPA's regulatory
scheme, neither procedural due process, the Administrative Procedure Act, nor CWA §304(h)
requires that every form of testing be formally promulgated before it can be used in a permit.
To impose a test method in a permit on a case by case basis, the method prescribed must be
scientifically acceptable (i.e., supported by technical reasoning, which has been made available to
the scientific community), and the use proposed for it must be reasonable. The static bioassay
prescribed by the Region meets these requirements. Permittee has not shown that the RA erred
when he concluded that Permittee's objections did not raise a serious question about whether the
method is scientifically acceptable or the use proposed is reasonable.
Since the Region has stipulated that testing in this instance will serve only as a relatively rough
and inexpensive screening device to determine whether acute toxicity is characteristic of the
effluent after elements in the discharge have combined and acted upon one another and have
been treated by BAT technology, its use is appropriate. Should this testing show that the treated
effluent is unacceptably toxic, the Region has stipulated that it will employ other, more precise
processes to set additional permit limits. Use of biological techniques to assess discharges under
the present circumstances is recommended by national policy. 49 Fed. Reg. 9017 (1984).
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The record supports the conclusion that toxics could be reasonably expected to be discharged
from the outfalls, despite the closing of the facility, originating in storm water runoff from
process areas which previously discharged arsenic, lead, nickel, thallium, and phenols. Toxic
discharges could reasonably be expected also from leachate from a hazardous waste landfill, being
closed on the grounds at the time that the permit was issued.
Disposition: Review of the RA's decision denied.
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40.CFR 124.6
NPDES Appeal No.: 85-23
Documents Available:
Order Granting Motion to Dismiss Petition for Review, March 14, 1986.
Permittee:
Reynolds Metals Company
(Permit No. TX0030597)
Background:
In accordance with the settlement of litigation on the forming guidelines and the stay issued by
the Court of Appeals in The Aluminum Assoc.. Inc.. et al. v. U.S. EPA, et al.. Nos. 84-3090, 84-
3101 (6th Cir. 1985), the Region withdrew the permit issued to a subsidiary of Permittee,
pursuant to 40 CFR 124.6.
Disposition: Permittee's Petition for Review is moot and dismissed.
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Standard of Review;
Evidentiary Hearing;
Forums;
State Water Quality
Management Plans;
Wastewater Discharge
Limits;
Section 208(e);
Section 303(c);
40 CFR 122.4(g);
40 CFR 122.44(d);
40 CFR 124.91(a);
40 CFR 131.21;
40 CFR 131.5;
40 CFR 131.6
NPDES Appeal No.: 85-25
Documents Available:
Final Agency Decision, Denial of Review, August 1, 1986.
Permittee:
Blytheville Sewer Commission
(Permit No. AR0022560)
Background:
Permittee seeks review of the RA's denial of a request for an evidentiary hearing to challenge the
permit's wastewater discharge limits which reflect requirements of a State Water Quality
Management Plan.
Issue:
Did the RA err or abuse his discretion in approving the State Water Quality Management Plan,
and thereafter denying an evidentiary hearing on permit limits on the grounds that the Plan
cannot be challenged in the context of issuance of a permit?
Discussion:
No. The Administrator will review an RA's denial of an evidentiary hearing only where the
denial involves clear error or abuse of discretion. 40 CFR §124.91 (a). In the instant proceeding,
neither of these conditions apply.
A hearing must be conducted on the terms of a permit only when there is a dispute about
relevant facts. The dispute in the present situation is centered instead on Permittee's
dissatisfaction with certain aspects of the State Water Quality Management Plan. The waterway
use reflected by the plan and the water quality standards to which Permittee objects, could have
been challenged in hearings conducted by the State prior to their adoption, and may be
challenged again during periodic reviews which must be conducted by the State. The plan as it
now stands, however, having been adopted by the State and approved by EPA, has become until
amended, part of the body of law with which individual permits must comply. 33 U.S.C. 208(e);
40 CFR §!22.4(g). See also 40 CFR §122.44(d). Designated uses and water quality criteria set in
the State plan must be approved by the RA so long as they meet minimal protection requirements
of the CWA and comply with the implementing regulations. See 33 U.S.C. §303(c); 40 CFR
§131.21; 40 CFR §131.5; 40 CFR §131.6. Since the State interprets its own recently recertified
plan to apply to the discharge at issue, the State's interpretation of its own plan must prevail.
Disposition: Review of the decision denied.
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State Water Quality
Management Plan;
Revised Effluent Limits
NPDES Appeal No.: 85-26
DocumentsAvailable:
Order Dismissing Notice of Appeal and Petition for Review, November 19, 1986.
Permittee:
Forrest City Water Utility
Forrest City, AR
(Permit No. AR0020087)
Background:
Permittee filed a Notice of Appeal and Petition for Review asking the Administrator to review
the Region's denial of Permittee's requests for an extension of the public comment period and an
evidentiary hearing. Subsequently, the State Commission on Pollution Control and Ecology
revised the effluent limits in the Water Quality Management Plan (WQMP) that apply to
Permittee's discharge, and the Region approved such revisions. EPA issued a revised NPDES
permit that is acceptable to Permittee, and thus Permittee has moved to dismiss its appeal.
Disposition: Appeal dismissed.
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, Factual/Legal Issues; 40 CFR 124.9I(aXl)(i);
Fundamentally Different 40 CFR 124.9 l(a)(l)(ii)
Factors Variance;
NPDES Docket No.: 1084-03-08-402(c)
Documents Available:
Only the Response to Region's Response to City of Sitka, dated April 15, 1985, is available, not
the Administrator's decision.
Permittee:
Alaska Pulp Corporation
(Permit No. AKOOOOS3-1)
Background:
The City seeks review of the RA's partial denial of a request for an evidentiary hearing with
respect to the denial of a fundamentally different factors variance for Permittee. The City's
petition for review addressed three issues: (1) Was EPA's non-water quality analysis consistent
with 40 CFR §125.3l(b)(3X«), and is the Agency's record adequate, under administrative law
principles, to sustain its decision? (2) Can EPA impose an NPDES permit that causes violation of
state air quality laws? (3) How can EPA modify its decision so as to avoid causing violation of
state air quality laws, and so as to achieve consistency with the City's coastal management
program? The RA denied the first two issues after classifying them as legal issues not entitled to
consideration in an evidentiary hearing. The RA stated that the factual issue presented by the
third matter did not raise a material issue relevant to the variance denial decision. The City
asserts that all three issues present factual questions entitled to consideration in an evidentiary
hearing, and in the alternative, even if the issues are characterized as legal, the City asserts that
the RA's decision to deny them was clearly erroneous or an exercise of discretion or policy which
is important and which the Administrator should review. 40 CFR §124.91(a)(l) (i) and (ii).
Disposition: Unknown.
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Interlocutory Appeal;
Motions/Response Time;
Affirmative Defense/Dismissal;
40 CFR 22.J6(b)
NPDES Appeal No.: —
Documents Available:
Order Denying Review, November 7, 1985.
Permittee;
Chemical Waste Management, Inc.
(NPDES No. 09-84-0037)
Background
A complaint was filed by the Region charging Respondent (Permittee) with significant violations
of RCRA requirements at its hazardous waste facility. After the Region assessed a penalty and
ordered Permittee to take various actions to achieve compliance, Permittee filed both general and
specific denials, 52 affirmative defenses, and a request for a hearing. The hearing was
authorized. In a pre-trial motion pursuant to 40 CFR 22.16, the Region moved to strike the
affirmative defenses. The motion was granted before Permittee's response was received.
Permittee requested reconsideration of the Ruling, protesting its timing and the standard used for
dismissal of the defenses. Alternatively, Permittee requested certification of an interlocutory
appeal to the Administrator. Upon reconsideration the ALJ affirmed his earlier Decision, but
granted certification. Permittee now seeks interlocutory review of the decision to strike the
affirmative defenses.
Issue (I):
Did the Presiding Officer act within his authority when he preempted Permittee's response to the
motion to strike?
Discussion (I):
Yes. The Presiding Officer . . . may set a shorter time for responses, or make such other orders
concerning the disposition of motions as [he] deem[s] appropriate." 40 CFR 22.16(b).
Issue nil:
Did the Presiding Officer act within his authority when he struck the affirmative defenses after
finding they were either repetitive of issues already covered by the pleading or so devoid of
factual support as to be presently irrelevant to the litigation?
Discussion fill:
Yes. The record appears to support that finding, and it is clearly within his authority to refuse to
entertain a panoply of underdeveloped defenses which appear to be presented to force unfounded
discovery and unnecessary delay.
Issue
In RCRA administrative proceedings, must all defenses be retained which under any set of facts
might be legally sufficient?
Discussion (Till:
No. A form a fact pleading, not notice pleading, has been established in this setting, and less
stress is placed on pleadings in administrative proceedings, allowing relevant issues to be
adjudicated under appropriate circumstances as long as each party receives sufficient notice.
Disposition: Interlocutory review denied. However, partial summary judgement has not been
granted on the affirmative defenses (the defenses are not barred permanently from the action).
-------
-------
INDEX
Appeal No.
Anti-Backsliding Rule Crockett, 1986
Antidegradation 86-1
Burden of Proof 86-14
Discharge Requirements 86-14
Environmental Impact Statements 86-1
Evidentiary Hearing 86-1, 86-2; 86-3; 86-4; 86-7; 86-11; Crockett, 1986
Factual/Legal Issues Crockett, 1986
Jurisdiction 86-1, 86-14
Legal Issues 86-4, 86-7
Modification of Secondary Treatment Requirements 86-3, 86-4, 86-7
Permit Conditions 86-14
Raising Issues 86-2
Standard of Review 86-2, 86-3, 86-4, 86-7, 86-11
State Certification 86-3, 86-4, 86-7
State Water Quality Standards 86-1
Timely Challenges 86-2
General Counsel Decisions
OGC No. 19 (June 27, 1975) 86-14
OGC No. 33 (October 21, 1975) 86-14
OGC No. 44 (July 22, 1976) 86-3, 86-4
OGC No. 58 (March 29, 1977) 86-3, 86-4
OGC No. 72 (Oct. 20, 1978) 86-2
Regulations
40 CFR 122.26 86-14
40 CFR 122.27(b) 86-14
40 CFR 122.44(1) Crockett, 1986
40 CFR 124.13 (1986) 86-2
40 CFR 124.74 86-7; Crockett, 1986
40 CFR 124.75(b) 86-1
40 CFR 124.76(1986) 86-2
40 CFR 124.85(a)(l) 86-14
40 CFR 124.91(a) 86-1, 86-3, 86-4, 86-7
40 CFR 124.9l(a)(1986) 86-2
40 CFR 124.9l(b) 86-1
40 CFR 124.91(c)(l)(1985) 86-11
40 CFR 125.59(bX3) 86-3
40 CFR 125.59(eX3) 86-3, 86-4
40 CFR 125.59(g)(2) 86-3, 86-4
40 CFR 125.60(b) 86-4
CWA Section
Section 301(h) 86-3, 86-4, 86-7
Section 30I(h) Variance : 86-3, 86-4, 86-7
Section 402 86-14
Section 502(12) 86-14
Section 51 l(c) 86-1
-------
Cross-Reference^i Appeals
Appeal No. 78-2 (March 16, 1978) 86-2, 86-3, 86-4, 86-7
Appeal No. 78-7 (August 28, 1978) 86-2, 86-3, 86-4, 86-7, 86-11
Appeal No. 83-2 (July 21, 1983) 86-11
Appeal No. 83-7 (December 27, 1983) . 86-2
Appeal No. 84-8 (September 3, 1985) 86-2
Appeal No. 84-13 (April 2, 1985) Crockett, 1986
Appeal No. 85-20 (August 29, 1986) 86-7
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KEY WORD TABLE
NPPES Appeal No./Permittee
86- I/City of Fayetteville, Arkansas
(Permit No. AR0020010)
Environmental Impact Statements;
Evidentiary Hearings;
State Water Quality Standards;
Antidegradation;
40 CFR 124.75(b);
40 CFR 124.91 (a), (b);
Section 51 l(c);
Jurisdiction
86-2/International Minerals and Chemical Corporation (IMC)
(Permit Nos. FL0000256, FL0000230, FL0000248)
Appeal No. 78-7 (Aug. 28, 1978);
Appeal No. 78-2 (March 16, 1978);
Appeal No. 84-8 (Sept. 3, 1985);
Appeal No. 83-7 (Dec. 27, 1983);
OGC No. 72 (Oct. 20, 1978);
40 CFR 124.9 l(a)( 1986);
86-3/City of Anacortes
(Permit Nos. WA-00202S-5, WA-002944-1)
Section 301(h) Variance;
OGC No. 58 (March 29, 1977);
OGC No. 44 (July 22, 1976);
Appeal No. 78-7 (August 28, 1978);
Appeal No. 78-2 (March 16, 1978);
40 CFR 125.59(g)(2);
State Certification;
40 CFR 125.59(b)(3);
86-4/City of Port Angeles
(Permit No. WA-002397-3)
OGC No. 58 (March 29, 1977);
OGC No. 44 (July 22, 1976);
40 CFR 125.59(e)(3);
State Certification;
40 CFR 125.60(b);
40 CFR 125.59(g)(2);
Section 301(h) Variance;
Legal Issues;
40 CFR 124.76(1986);
40 CFR 124.13(1986);
Raising Issues;
Timely Challenges;
Standard of Review;
Evidentiary Hearing
40 CFR 125.59(e)(3);
Standard of Review;
Evidentiary Hearing;
Modification of Secondary
Treatment Requirements;
Section 301(h);
40 CFR 124.91 (a)
Standard of Review;
Evidentiary Hearing;
Appeal No. 78-7 (August 28, 1978);
Appeal No. 78-2 (March 16, 1978);
40 CFR 124.91(a);
Section 301(h);
Modification of Secondary
Treatment Requirements
86-5/City of Port Arthur, Texas
(Permit No. TX0047589)
-------
86-7/City of Lynwood
(Permit No. WA-002403-1)
Appeal No. 78-7 (August 28, 1978);
Appeal No. 78-2 (March 16, 1978);
Appeal No. 85-20 (August 29, 1986);
Section 301(h);
Section 301(h) Variance;
Modification of Secondary
Treatment Requirements;
Standard of Review;
Evidentiary Hearing;
40CFR 124.9 l(a);
State Certification;
40 CFR 124.74;
Legal Issues
86-1 I/Georgetown Kentucky Municipal Water and Sewer Services
(Permit No. KY0082007)
Standard of Review;
Evidentiary Hearing;
40 CFR 124.91(c)(l)(1985);
86-12/City of Garland, Texas
(Permit No. TX002467)
86-14/Shee Atika, Inc.
(Docket No. 1085-07-22-402)
Section 502(12);
Section 402;
OGC No. 33 (October 21, 1975);
OGC No. 19 (June 27, 1975);
40 CFR 124.85(a)(l);
Burden of Proof;
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983)
40 CFR 122.26;
40 CFR 122.27(b);
Permit Conditions;
Discharge Requirements;
Jurisdiction
•/Crockett County Water Control & Improvement Dist. No. 1
(Docket No. TX00098345)
Anti-Backsliding Rule;
40 CFR 122.44(1);
Evidentiary Hearing;
Factual/Legal Issues;
Appeal No. 84-13 (April 2, 1985);
40 CFR 124.74
-------
Environmental Impact Statements;
Evidentiary Hearings;
State Water Quality Standards;
Interstate Waters;
Antidegradation;
40 CFR 124.75(b);
40 CFR 124.91(a)(b);
Section 511(c);
Jurisdiction
NPDES Appeal No.: 86-1
Documents Available:
Order Denying Review, May 23, 1986.
Per.mit.tgg:
City of Fayetteville, Arkansas
(Permit No. AR00200IO)
Background:
Evidentiary hearing request by the State of Oklahoma and others granted in part and denied in
part. Oklahoma seeks review of the partial denial, while permittee seeks review of the partial
grant.
Issue (I): Did the Regional Administrator err in denying an evidentiary hearing on the issue of
whether permit required preparation of an environmental impact statement?
Discussion (I):
No. An environmental impact statement is not necessary or customary for the issuance of an
NPDES permit.
Issue
Did the Regional Administrator err in granting an evidentiary hearing on the issues of whether
the technology which permittee intended to utilize would be adequate to meet treatment
requirements in the permit, and whether in general another State's water quality and anti-
degradation standards will be met by a permit.
Discussion HI):
No. It is within a Regional Administrator's discretion to grant an evidentiary hearing to
reconsider a previous decision to issue a permit. The Administrator can only review the denial of
a request to reconsider the issuance of a permit. Otherwise, the Administrator lacks any
jurisdictional basis to review the grant of an evidentiary hearing.
Review of the Regional Administrator's decision is denied.
-------
Appeal No. 78-7 (Aug. 28, 1978);
Appeal No. 78-2 (March 16, 1978);
Appeal No. 84-8 (Sept. 3, 1985);
Appeal No. 83-7 (Dec. 27, 1983);
OGC No. 72 (Oct. 20, 1978);
40CFR 124.91(a)(1986);
40CFR 124.76(1986);
40 CFR 124.13(1986);
Raising Issues;
Timely Challenges;
Standard of Review;
Evidentiary Hearing
NPDES Appeal No.: 86-2
Documents Available:
Order Denying Review, October 2, 1987.
Permittee:
International Minerals and Chemical Corporation (IMC)
(Permit Nos. FL0000256, FL0000230, FL0000248)
Background:
Permittee seeks review of the Region's decision denying a request for an evidentiary hearing on
inclusion of a reopener clause, a BMP plan requirement, and discharge limitations and monitoring
requirements for three parameters. The Region denied the request on the grounds that Permittee
failed to raise these issues during the comment period, and after concluding that none of the
requests set forth factual issues relevant to issuance of the permits, as required for an evidentiary
hearing to be granted under 40 CFR 124.76.
Issue (I):
Should a petition for review be granted when the Region's decision is neither clearly erroneous
nor involves an exercise of discretion or policy that is important and should be reviewed by the
Administrator?
Discussion(I):
No, the regulations (40 CFR 124.91 (a) do not confer an automatic right of review. The petitioner
has the burden of demonstrating that review should be granted.
Issue (ID:
Did the Region err in denying Permittee's evidentiary hearing request on the grounds that
Permittee failed to contest the permit terms during the comment period?
Discussion dl):
No. Under 40 CFR 124.13, parties must raise all reasonably ascertainable issues and provide any
supporting information during the public comment period. Review of the administrative record
shows that Permittee did not comment on any of the three permits at issue during the public
comment period. Permittee's comments on another facility's permit were not sufficient to put
EPA on notice of the objections to the permits in this case. Permittee cannot raise issues, factual
of legal, for the first time in a request for an evidentiary hearing or on appeal to the
Administrator.
-------
Issue
Did the Region lack legal authority to include the contested provisions (the reopener clause; BMP
plan requirement; discharge limitations and monitoring requirements) in the permits?
Discussion CIII1:
No. CWA Section 402(a)(l) authorizes inclusion of "such conditions as the Administrator
determines are necessary to carry out the provisions of [this act]." The Region, as the permit-
issuing authority, also has the responsibility under CWA §§ 301 and 402 to include State
limitations in permits if they are more stringent than federal limitations, including limitations
necessary to meet State water quality standards.
Disposition: Petition for Review denied.
-------
Section 301{h) Variance; 40 CFR 125.59(e)(3);
OGC No. 58 (March 29, 1977); Standard of Review;
OGC No. 44 (July 22, 1976); Evidentiary Hearing;
Appeal No. 78-7 (August 28, 1978); Modification of Secondary
Appeal No. 78-2 (March 16, 1978); Treatment Requirements;
40 CFR 125.59(g)(2); Section 301(h);
State Certification; 40 CFR 124.91 (a)
40 CFR 125.59(b)(3);
NPDES Appeal No.: 86-3
Documents Available:
Order Denying Review, September 16, 1986.
Permittee:
City of Anacortes
(Permit Nos. WA-002025-5, WA-002944-1)
Background:
Permittee seeks review of the RA's denial of its request for an evidentiary hearing, and denial of
its Section 301(h) modified permit application for its POTWs after the State Department of
Ecology (DOE) withheld concurrence. The DOE's determination is under administrative review
before the State Pollution Control Hearings Board. The RA denied the evidentiary hearing
request on the grounds that Permittee failed to raise any factual issues relevant to issuance of a
Section 30 l(h) waiver.
Issue (D:
Did the RA erroneously deny the §301(h) waiver on the basis of the State DOE's negative
determination, prior to administrative review of the DOE's decision?
Discussion (I):
No. Under §301(h) and 40 CFR 125.59(g)(2), EPA cannot issue a waiver without concurrence
from the State, or if "such issuance would conflict with applicable provisions of State . .. laws."
40 CFR 125.59(b)(3). Permittee failed to meet its affirmative duty under 40 CFR 125.59(e)(3) to
provide a favorable determination from DOE that its proposed discharge would comply with State
law. DOE is the designated State agency, and EPA did not have to await the outcome of
administrative proceedings on DOE's determinations before ruling on the waiver request.
Issue fin:
Can EPA review the merits of the DOE decision?
Discussion (ID:
No. The statutory scheme of the Act and case law both support the conclusion that EPA lacks
authority to review negative State determinations on Section 301 (h) applications. EPA has long
held that it has no authority to review a State certification or to decide whether limitations
certified by a State are more stringent than required by State law. OGC No. 58 (March 29, 1977)
and OCG No. 44 (July 22, 1976).
Disposition: Petition for Review denied.
-------
OGC No. 58 (March 29, 1977); Standard of Review;
OGC No. 44 (July 22, 1976);
40 CFR 125.59(e)(3);
State Certification;
40 CFR 125.60(b);
40 CFR 125.59(g)(2);
Section 301(h) Variance;
Legal Issues;
Evidentiary Hearing;
Appeal No. 78-7 (August 28, 1978);
Appeal No. 78-2 (March 16, 1978);
40 CFR 124.91(a);
Section 301(h);
Modification of Secondary
Treatment Requirements
NPDES Appeal No.: 86-4
Documents Available:
Order Denying Petition for Review, September 22, 1986.
Permittee:
City of Port Angeles
(Permit No. WA-002397-3)
Background:
Permittee seeks review of the RA's denial of its request for an evidentiary hearing, and denial of
its Section 301(h) modified permit application for its POTW after the State Department of
Ecology (DOE) withheld concurrence. Permittee's judicial appeal of the State Pollution Control
Hearings Board's decision affirming the DOE's negative determination is pending in the State
courts.
Issue (I):
Did the RA err in denying the Section 301(h) waiver application on the basis of the DOE's
negative determination, before State court remedies had been exhausted?
Discussion (D:
No. EPA's regulations allow EPA to deny a Section 301(h) waiver request upon receipt of a
negative determination from the DOE, without awaiting completion of the State judicial process.
Under §30 1 (h), 40 CFR 125.59(g)(2), and 40 CFR 125.60(b), EPA cannot issue a waiver without
State concurrence, or if "such issuance would conflict with applicable provisions of State . . .
laws. 40 CFR 125.59(b)(3). Permittee failed to meet its affirmative duty under 40 CFR 125.59
(e)(3) to provide a favorable determination from DOE, the designated State agency, that the
proposed discharge would comply with State law. The right to judicial review DOE's decision in
State court is a right conferred by State law, and is not a federal concern for purposes of due
process.
Issue
Does EPA have authority to review negative State determinations on Section 30I(h) applications?
Discussion fill:
No. The statutory scheme of the Act and case law both support the RA's conclusion that EPA
lacks authority to review negative State determinations on §301(h) applications. EPA has long
held that it has no authority to review a State certification or to decide whether limitations
certified by a State are more stringent than required by State law. OCG No. 58 (March 29,1977);
OCG No. 44 (July 22, 1976).
-------
Issue
Must the RA deny a request for an evidentiary hearing if, as here, no factual issues
relevant to issuance of the waiver are raised?
Discussion (IIIV:
Yes. Moreover, there is no abuse of discretion or important policy determination
warranting review by the Administrator.
Disposition: Petition for Review denied.
-------
NPDES Appeal No.: 86-5
Documents Available:
Order, December 2, 1986.
Permittee:
City of Port Arthur, Texas
(Permit No. TX0047589)
Disposition: Permittee's petition for review is dismissed from motion of the Region.
-------
Appeal No. 78-7 (August 28, 1978); Standard of Review;
Appeal No. 78-2 (March 16, 1978); Evidentiary Hearing;
Appeal No. 85-20 (August 29, 1986); 40 CFR 124.9I(a);
Section 301(h); State Certification;
Section 301(h) Variance; 40 CFR 124.74;
Modification of Secondary Legal Issues
Treatment Requirements;
NPDES Appeal No.: 86-7
Documents Available:
Order Denying Petition for Review, September 16, 1986.
Permittee:
City of Lynwood
(Permit No. WA-002403-1)
Background:
Permitee seeks review of the Region's denial of its Section 301(h) modified permit application for
its POTW based on the State Department of Ecology's (DOE's) negative determination, and of the
Region's denial of its request for an evidentiary hearing for failure to raise factual questions
relevant to issuance of a §301(h) waiver. Permittee's judicial appeal of the State Pollution Control
Hearings Board's affirmation of the DOE's decision is pending in the State Courts.
Issue (I):
Did the RA properly exercise his discretion in denying the §30 1 (h) waiver on the basis of the
DOE's negative decision, without waiting until completion of the State judicial process?
Discussion (IV.
Yes. Under §301(h) and 40 CFR 125.59(e)(3), EPA cannot issue a waiver without State
concurrence. DOE is the designated State agency, and Permittee failed to meet its affirmative
duty to obtain a favorable determination from DOE regarding the discharge's compliance with
State law. The RA need not await the outcome of State court proceedings before ruling on the
waiver request; EPA's regulations allow EPA to act upon receipt of the DOE's decision.
Issue
Did the Region properly deny Permittee's hearing request on the grounds there were no factual
issues raised in the request for an evidentiary hearing?
Discussion (HP:
Yes. 40 CFR 124.74 requires the RA to deny an evidentiary hearing request if no factual issues
relevant to issuance of the waiver are raised.
Disposition: Petition for Review denied.
-------
Standard of Review; Appeal No. 78-7 (August 28, 1978);
Evidentiary Hearing; Appeal No. 83-2 (July 21, 1983)
40CFR I24.91(c)( 1X1985);
NPDES Appeal No.: 86-11
Documents Available:
Order Denying Petition for Review, January 16, 1987.
Permittee:
Georgetown Kentucky Municipal Water and Sewer Services
(Permit No. KY0082007)
Background:
Petitioner filed an appeal of the denial of his request for an evidentiary hearing.
Issue:
Should a petition for review normally be accepted if the decision is not clearly erroneous nor
involves an exercise of discretion or policy which is important and which should be reviewed as
an discretionary matter?
Discussion:
No. The regulations do not confer an automatic right to have a decision reviewed on appeal, 40
CFR 124.91(1985).
Disposition: Review of the denial of Petitioner's request for an evidentiary hearing is declined.
-------
NPDES Appeal No.: 86-12
Documents Available:
Correspondence between Chief Judicial Officer and Assistant Regional Counsel, March IS, 1988.
Permittee:
City of Garland, Texas
(Permit No. TX002467)
Background:
The Region requested dismissal of the appeal filed by Permittee.
Disposition: Appeal dismissed.
-------
Section 502 (12); 40 CFR 122.26
Section 402; 40 CFR 122.27 (b);
OGC No. 33 (October 21, 1975); Permit Conditions;
OGC No. 19 (June 27, 1975); Discharge Requirements;
40 CFR 124.85 (a)(l); Jurisdiction
Burden of Proof;
NPDES Appeal No.: 86-14
Documents Available:
Initial Decision, November 4, 1986.
Order Petitions for Review, January 21, 1988.
Permittee:
Shee Atika, Inc.
(NPDES Docket No. 1085-07-22-402)
Background:
Three separate petitions for review were filed concerning the ALJ's findings in issuing a permit
to Shee Atika for discharge from a log transfer facility.
Issue (I):
Is an NPDES permit required where discharge will result in de minimis pollution?
Discussion (IV.
Yes. The impact of discharge on receiving waters is irrelevant. The focus of the Clean Water
Act permitting is the technological control of effluent, not receiving water quality.
Issue
Did ALJ err in finding that EPA is not authorized to regulate discharge from a log sortyard?
Discussion (II):
Remanded for determination of whether a drydecking log sortyard is a point source as defined at
40 CFR 122.27(b). If the sortyard is a point source, then ALJ's finding is erroneous. Also
remanded for determination of whether regulatory authority exists under 40 CFR 122.26 or CWA
Section 402 in general.
Issue mi):
Can a permit contain two separate requirements both included to achieve the same control?
Discussion
Remanded for determination of whether imposing two separate requirements is reasonable. If
not, then which requirement is appropriate and supported by evidence. Also remanded for
determination of whether the control itself is reasonable, and if so, is the specific requirement or
requirements reasonable to achieve that control.
Disposition: An NPDES permit is required for log transfer facility discharge. The case is
remanded for determinations of whether specific activity is subject to regulation, and whether
other permit conditions and requirements are reasonable.
-------
Ami-Backsliding Rule;
40 CFR 122.44(1);
Evidentiary Hearing;
Factual/Legal Issues;
Appeal No. 84-13 (April 2,
40 CFR 124.74
1985);
NPDES Appeal No.: —
Documents Available:
Order Denying Request for Legal Opinion, October 23, 1986.
See also NPDES Appeal No. 87-3.
Permittee:
Crockett County Water Control & Improvement Dist. No. 1
(Docket No. TX00098345)
Background'
The Region granted the request by Petitioner (a private party owning a nearby
cattle ranch) for an evidentiary hearing on the permit. Petitioner claims that the
permit contains effluent limitations which violate the anti-backsliding rule, and he
requests a legal opinion regarding the regulations.
Issue:
Should Petitioner's request for a legal opinion from the Administrator be denied,
given that the request for an evidentiary hearing has been granted and no
interlocutory appeal has been certified by the Presiding Officer?
Discussion:
Yes. The issue has not been resolved as to whether factual/legal or only legal
issues have been raised in the evidentiary hearing request, but in either event, the
request for a legal opinion must be denied. If only a legal issue is raised (i.e., the
proper interpretation of 40 CFR 122.44(1)), the parties should collaborate on the
means of putting the proceeding in the proper procedural posture for review since
under 40 CFR 124.74, the Region should never have granted the hearing request.
The Administrator is without review authority until after the Presiding Officer's
Initial Decision is issued. If both legal and factual issues are raised, the proper
forum for resolution of both types of issues is in the evidentiary hearing.
Disposition: Request for legal opinion denied.
-------
-------
INDEX
Appeal No.
Alternative Limitations 87-14
Appeal Procedures 87-10
Compliance Schedules 87-10
Effluent Limitations 47-6, 87-14, Puerto Rico, 1987
Evidentiary Hearing 87-1, 87-3, 87-12, Puerto Rico, 1987
Forums 87-8
Interim Limits 87-8
Jurisdiction 87-14
Monitoring and Reporting 87-6
Monitoring Requirements 87-8
Permits 87-14
Retroactivity 87-10
Standard of Review 87-3, 87-12, Puerto Rico, 1987
State Rules 87-6
State Water Quality Standards 87-1, 87-8, Puerto Rico, 1987
Stay of Proceedings 87-19
Third Parties 87-19
General Counsel Decisions
OGC No. 58 (March 29, 1977) Puerto Rico, 1987
Regyjanonj
40 CFR 122.41 87-14
40 CFR 122.43 87-14
40 CFR 124 Preamble 87-1
40 CFR 124, Subpart E 87-10
40 CFR 124.5(b) 87-10
40 CFR 124.6(d) 87-14
40 CFR 124.60 87-19
40 CFR 124.60(c)(6)(iii) 87-14
40 CFR 124.91 (1985) Puerto Rico, 1987
40 CFR 124.91 (1986) 87-3, 87-12
40 CFR 124.91(a) 87-1
40 CFR 124.91(a)(l) 87-14
40 CFR 124.91(f) 87-14
CWA Section
Section 30I(b)(l)(C) 87-1, 87-6, Puerto Rico, 1987
Section 30I(b)(2) 87-1
Section 301(m) 87-14
Section 302 87-1
Section 308(a) 87-6
Cross-Referenced Appeals
Appeal No. 78-2 (March 16, 1978) 87-1
Appeal No. 78-7 (August 28, 1978) 87-1, 87-3, Puerto Rico, 1987
Appeal No. 83-2 (July 21, 1983) 87-3, Puerto Rico, 1987
Appeal No. 84-12 (November 6, 1985) 87-1, Puerto Rico, 1987
Appeal No. 86-11 (January 16, 1987) 87-3, Puerto Rico, 1987
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KEY WORD TABLE
NPDES Appeal No./Permittee
87-1/Goodyear Aerospace Corp.
(Permit No. NPDES 09-87-0002)
State Water Quality Standards;
Appeal No. 78-7 (August 28, 1978);
Appeal No. 78-2 (March 16, 1978);
Appeal No. 84-12 (June 11, 1985);
Evidentiary Hearings;
40 CFR 124 Preamble;
40CFR 124.91 (a);
Section 302;
Section 301(b)(l)(C);
Section 301(b)(2)
87-3/Crockett County Water Control and Improvement District No. 1
(Docket No. TX00098345)
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16, 1987);
87-5/Massachusetts Water Resources Authority
(Permit No. MA102351)
87-6/Occidental Chemical Agricultural Products, Inc.
(Permit No. FL0036226)
Section 301(b)(lXC);
State Rules;
Effluent Limitations;
87-8/Star-Kist Samoa, Inc./Samoa Packing Company
(Permit Nos. AS0000019 and
AS0000027)
(Docket No. NPDES 09-87-0003)
Water Quality Standards;
Interim Limits;
Monitoring Requirements;
87-10/City of Sarasota
(Permit No. FL0024791)
40 CFR 124.5(b);
40 CFR 124, Subpart E;
Retroactivity;
87-11/City of New Bedford
(Permit No. MAO 100781)
87-12/C5ty of Port St. Joe, Florida
(Permit No. FL0020206)
Standard of Review;
Evidentiary Hearing;
40 CFR 124.91 (1986)
Standard of Review;
Evidentiary Hearing;
40 CFR 124.91 (1986);
Section 308(a);
Monitoring and Reporting
Forums;
Public Comment Periods
Compliance Schedules;
Appeal Procedures
-------
87-14/Simpsoo Paper Company
(Permit No. CAOOOS282)
Louisiana-Pacific Corporation
(Permit No. CA0005894)
(Docket No. NPDES-09-87-0005)
Jurisdiction;
Section 301(m);
Effluent Limitations;
40 CFR 124.91(a)(l);
Permits;
Alternative Limitations;
87-19/Kenneth H. Manning
40 CFR 124.60;
Stay of Proceedings;
Third Parties
/Puerto Rico Aqueduct and Sewer Authority
(Permit Nos. II WP-86-07 to 19)
|See actual appeal for list of treatment plants]
Evidentiary Hearing;
Standard of Review;
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16, 1987);
40 CFR 124.91 (1985);
40 CFR 124.60(c)(6)(iii)
40 CFR 122.41
40 CFR 122.43
40 CFR I24.6(d)
40 CFR 124.91(0
Appeal No. 84-12 (November 6,
OGC No. 58 (March 29, 1977);
Effluent Limitations;
State Water Quality Standards;
Section 301(b)(l)(C)
1985);
-------
State Water Quality Standards; 40 CFR 124 Preamble;
Appeal No. 78-7 (August 28, 1978); 40 CFR 124.91(a);
Appeal No. 78-2 (March 16, 1978); Section 302;
Appeal No. 84-12 (November 6, 1985); Section 30l(b)(l)(C);
Evidentiary Hearings; Section 30l(b)(2)
NPDES Appeal No.: 87-1
Documents Available:
Order Denying Review, September 26, 1989.
Permittee:
Goodyear Aerospace Corp.
(Permit No. NPDES 09-87-0002)
Backgroun±
Permittee seeks review of the RA's denial of the request for an evidentiary hearing. Permittee
claims that technologically unachievable permit limitations adopted to satisfy state water quality
standards are too stringent. Permittee also claims that since limitations are more stringent than
required by Section 30 1 , Permittee is entitled to a hearing to determine if limitations should be
included in permit.
Issue m:
Under 301(b)(l)(C), does EPA have discretion to alter state water quality standards where the
implementation of the standards may be technologically unachievable?
Discussion CI>:
No. Section 30I(b)(l)(C) requires EPA to implement State water quality standards which are
more stringent than those required under Federal law.
Issue (11):
Does Section 302 require EPA to hold a hearing to determine if limitations more stringent than
required by Section 301 should be included in a permit, where the more stringent standards are
not technology-based?
Discussion (ID:
No. Section 302 only applies when EPA determines that technology-based effluent limitations
imposed by Section 301(b)(2) would interfere with water quality goals. Since the limitation
imposed is not technology-based. Section 302 does not apply.
Disposition: The petition for review is denied.
-------
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16, 1987);
Standard of Review;
Evidentiary Hearing;
40CFR 124.91 (1986)
NPDES Aooeal No.: 87-3
Documents Available:
Order Denying Petition for Review, May 5, 1987.
[Also refer to the October 23, 1986 ruling on this permit, after which the Region rescinded its
earlier grant of an evidentiary hearing request.]
Permittee:
Crockett County Water Control and Improvement District No. 1
(Docket No. TX00098345)
Background:
Petitioner, a private party, seeks review of the RA's, denial of a reqeust for an evidentiary
hearing. Both the Region and Permittee oppose granting review.
Issue:
Should a petition for review normally be granted when the decision is neither clearly erroneous
nor involves an exercise of discretion or policy that is important and therefore should be
reviewed as a discretionary matter?
Discussion:
No. The regulations do not confer as automatic right to have a decision reviewed on appeal. 40
CFR 124.91 (1986).
Disposition: Petition for Review denied.
-------
NPDES Appeal No.: 87-5
DocumentsAvailable:
Correspondence between Chief Judicial Officer and Permittee's Counsel, April 22, 1987.
Permittee:
Massachusetts Water Resources Authority
(Permit No. MA 102351)
Background:
Permittee filed a petition for review of the RA's denial of its request for an evidentiary hearing.
Disposition: Petition for Review dismissed at Permittee's request.
-------
Section 301 (b)( 1 )(C); Section 308(a);
State Rules; Monitoring and Reporting
Effluent Limitations;
NPDES Appeal No.: 87-6
Documents Available:
Order Denying Review, March 23, 1990.
Permittee:
Occidental Chemical Agricultural Products, Inc.
(Permit No. FL0036226)
Background.:
Permittee petitions for review of a decision of the Region IV RA denying request for an
evidentiary hearing.
Issue m:
Can an NPDES permit include a state rule which is not a state water quality standard or effluent
limitation imposed under state regulation?
Discussion (]):
Yes. Section 30l(b)(l)(C) authorizes EPA to write permits that incorporate any more stringent
State limitation. Such limitations need not be an effluent limitation. The subject matter of any
State rule or regulation imposed only needs to fit the ordinary meaning of "limitation." Inclusion
in a permit operates as a restriction on the discharger's discretion in discharging pollutants.
Issue (11):
Does EPA possess independent authority to prescribe monitoring and reporting requirements in
permits?
Discussion (II):
Yes. Section 308(a) authorizes EPA to designate itself as the entity entitled to receive reports and
prescribe monitoring requirements.
Disposition: Permittee's petition for review is denied.
-------
State Water Quality Standards; Forums;
Interim Limits; Public Comment Period
Monitoring Requirements;
NPDES ApoealNo.: 87-8
Documents Available:
Order Denying Petition for Review, September 26, 1989
Order Denying Petition for Reconsideration, November 3, 1989
Permittee:
Star-Kist Samoa, Inc.
(Permit No. AS0000019)
Samoa Packing Company
(Permit No. AS0000027)
(Docket No. NPDES 09-87-0003)
Background:
Permittee petitions for review of partial denial of request for an evidentiary hearing by Region
IX RA. Petition for review grounded on fourteen issues, several related to provisions in the
water quality standards of American Samoa.
Issues:
Permittee seeks review of permit conditions based on territorial water quality standards, and their
interpretation, interim limits, and monitoring requirements.
Discussion;
Four of the issues raised are dismissed for failure to raise them during the public comment period
as required. The remainder are rejected for failing to demonstrate that the RA's decision was
clearly erroneous. Specifically, issues raised related to American Samoa water quality standards
are actually collateral attacks on the standards themselves, rather than their application. An
evidentiary hearing is not the proper forum for this attack. Interim limits and monitoring
requirements are discretionary, and the permittee again has not shown clear error.
Disposition:
Review of the partial denial of evidentiary hearing request denied.
-------
40 CFR 124.5(b);
40 CFR 124, Subpart E;
Retroactivity;
Compliance Schedules;
Appeal Procedures
NPDES Appeal No.: 87-10
Documents Available:
Correspondence between Chief Judicial Officer and City Manager, August 27, 1987.
Permittee:
City of Sarasota
(Permit No. FL0024791)
Background:
Permittee requested modification of the permit to substitute limitations based on CBODg for
BODs. The Region modified the permit, but denied the request to apply these limitations
retroactively. The Region also added a compliance schedule. Permittee contested, by letter, the
Region's refusal to apply the CBODg limitations retroactively, and the incorporation of the
compliance schedule. Permittee is uncertain whether the informal appeal procedures under 40
CFR 124.5(b), or the formal adjudication procedures at 40 CFR Part 124, Subpart E, govern.
Thus, Permittee also filed a request for an evidentiary hearing on both issues under Subpart E.
The Region is considering the request.
Issue:
Should Permittee's request for review under 40 CFR 124.5, rather than 40 CFR Part 124, Subpart
E, be granted regarding the retroactivity and compliance schedule issues?
Discussion:
No. Either the informal appeal procedures under 40 CFR 124.5(b) or the formal adjudication
procedures at 40 CFR Part 124, Subpart E be used; however, since the Region's decision on the
hearing is imminent, the better appeal course is Subpart E, which applies to situations where an
evidentiary hearing has been granted or denied. The informal appeal under 40 CFR 124.5(b)
applies when the RA denies a request for permit modification, but in this instance there has been
no denial per se.
Disposition: Request for Review under 40 CFR 124.5 denied, without prejudice to Permittee's
right to pursue an appeal under 40 CFR Part 124, Subpart E.
-------
NPDES Anneal No.: 87-11
Documents Available:
Order Dismissing Petition for Review, January 29, 1988.
Permittee:
City of New Bedford
(Permit No. MAO 100781)
Background:
Permittee filed a petition seeking review of the RA's denial of its request for an evidentiary
hearing. In accordance with the terms of a subsequent consent decree, Permittee has withdrawn
petition for review.
Disposition; Appeal dismissed.
-------
Standard of Review;
Evidentiary Hearing;
40 CFR 124.91 (1986)
NPDES Appeal No.: 87-12
Documents Available:
Order Denying Petition for Review, October 27, 1987.
Permittee:
City of Port St. Joe, Florida
(Permit No. FL0020206)
Background:
Permittee seeks review of the RA's denial of a request for an evidentiary hearing.
Issue:
Should a petition for review normally be accepted when this decision is neither clearly erroneous,
nor involves an exercise of discretion or policy which is important and which should be reviewed
as a discretionary matter?
Discussion:
No. The regulations do not confer an automatic right to have a decision reviewed on appeal, 40
CFR 124.91 (1986).
Disposition: Petition for Review denied.
-------
Jurisdiction;
Section 301(m);
Effluent Limitations;
40 CFR 124.9l(a)(l);
Permits;
Alternative Limitations;
40 CFR 124.60(c)(6)(iii);
40 CFR 122.41;
40 CFR 122.43;
40 CFR 124.6(d);
40 CFR 124.91(f)
NPDES Appeal No.: 87-14
Documents Available:
Order on Petitions for Review, March 19, 1990.
Interim Final Order, April 26, 1990.
Permittee:
Simpson Paper Company
(Permit No. CAOOOS282)
Louisiana-Pacific Corp.
(Permit No. CA0005894)
(Docket No. NPDES-09-87-0005)
Background-
Permits issued were modified in accordance with section 301(m), which allows relaxation of
applicable effluent limitations for Biochemical Oxygen Demand and pH for these two particular
dischargers. Hearing requests received from the permittees and from a coalition of public
interest groups were granted in part and denied in part by the EPA Regional Administrator (RA)
for Region IV. The coalition raises eight issues on appeal, while the permittees seek review of an
RA decision to impose alternative interim requirements for acute and chronic toxicity testing.
Issue (I):
Do EPA's regulations on administrative appeals grant jurisdiction for review of matters related to
the grant of an evidentiary hearing?
Discussion (Dr.
No. Review of the decision to impose alternative interim requirements is denied for lack of
jurisdiction. Under section 124.91(a)(l), jurisdiction for appeals is limited to two types of
decisions; initial decisions of an Administrative Law Judge; and the denial of a request for an
evidentiary hearing by a Regional Administrator. In the instant case, an evidentiary hearing had
been granted on issues of acute and chronic toxicity testing, with the alternative interim
requirements ensuing. Though there may have been no basis for the imposition of alternative
requirements (see 40 CFR 12460(c)(6)(iii)), there is no jurisdictional basis for the Administrator
to review the decision.
Issue fin:
Does a permit provision allowing substitution of effluent limitations for suspended solids and
light transmittance with "alternative limitations" (set by State Board and approved by EPA) which
are presently unknown and unascertainable circumvent public participation procedures and
further requirements that a permit contain all conditions required by the applicable regulations
40 CFR 122.41, 122.43, 122.44(a) & (b), 124.6(d))?
Discussion (III:
Yes. Review was granted on this issue, and consequently the permit was modified to make the
formal permit modification procedures of 40 CFR 124 applicable to future changes to the
permits* suspended solids and light transmittance limitations. Hence the issue has been rendered
moot.
Disposition: The petitions for review are denied except for the sole issue of whether of permit
conditions allowing "alternative limitations." Review of this issue dismissed as moot in the
interim. Final resolution of this issue will not occur until all permit modifications and appeals
are resolved.
-------
40 CFR 124.60;
Stay of Proceedings;
Third Parties
NPDES Appeal No.: 87-19
Documents Available:
Permittee:
Kenneth H. Manning
Background:
Region denied application for permit renewal because permittee failed to provide any discharge
monitoring reports in 1986, in violation of his expired NPDES permit. Applicant claimed that
reporting requirements were unconstitutional and that on-going hearing and appeal of his expired
permit had stayed the permit's reporting requirements. Region denied request for a hearing
because reporting was required by EPA regulation. Review granted by Administrator to address
contention that reporting requirements were stayed by evidentiary hearing on expired permit.
Issue:
For contested permit conditions to be stayed pursuant to 40 CFR 124.60, must an evidentiary
hearing be requested by permittee himself?
Discussion:
Yes. In this case, request for hearing had been requested by trade association challenging
identical conditions across several permits. Such third party requests do not operate to stay
conditions in individual permits. Permittee had not requested a hearing nor had someone else
make a request on his behalf.
Disposition:
Denial of NPDES permit affirmed.
-------
Evidentiary Hearing;
Standard of Review;
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16, 1987);
40 CFR 124.91 (1985)
NPDES Appeal No.:
Documents Available:
Order Denying Petition for Review, April 8, 1987.
Permittee:
Puerto Rico Aqueduct and Sewer Authority
(Permit Nos. II WP-86-07 to 19)
Caguas Sewage Treatment Plant
San German Sewage Treatment Plant
Yauco Sewage Treatment Plant
Villa Carolina Sewage Treatment Plant
Orocovis Sewage Treatment Plant
de Carolina Sewage Treatment Plant
Appeal No. 84-12 (November 6, 1985);
OGC No. 58 (March 29, 1977);
Effluent Limitations;
State Water Quality Standards;
Section 301(b)(0(C)
Cayey Sewage Treatment Plant
Dorado Sewage Treatment Plant
Aguas Buenas Sewage Treatment Plant
Gurabo Sewage Treatment Plant
Humacao Sewage Treatment Plant
Vega Baja Sewage Treatment Plant
Ciales Sewage Treatment Plant Lomas
Background:
Permittee seeks review of the RA's denial of the request for an evidentiary hearing. Permittee
claims that EPA has no authority to claim independent responsibility to enforce State water
quality standards apart from whatever standards and limitations the State certifies or waives
under CWA §401.
Issue (I):
Does EPA have independent authority to impose stricter permit limits than State certified limits
which the Agency considers too lax in order to enforce State water quality standards?
Discussion (I):
Yes. CWA §301(bXD(C) calls for compliance with State water quality standards, without
reference to State certification under §401. Also, an EPA final decision in 1985 confirms that
EPA can independently apply §301(b)(l)(C) to set more stringent conditions and limitations in a
permit, based or State water quality standards.
Issue (U):
Is a petition for review normally accepted when the decision is neither clearly erroneous, nor
involves an exercise of discretion or policy which is important and therefore should be reviewed
as a discretionary matter?
Discussion (II):
No. The regulations do not confer an automatic right to have a decision reviewed on appeal. 40
CFR 124.91 (1985).
Disposition: Petition for Review denied.
-------
-------
INDEX
Issues Appeal No.
Alternative Limitations 87-14
Appeal Procedures 87-10
Compliance Schedules 87-10
Effluent Limitations 87-6, 87-14, Puerto Rico, 1987
Evidentiary Hearing 87-1, 87-3, 87-12, Puerto Rico, 1987
Forums 87-8
Interim Limits 87-8
Jurisdiction 87-14
Monitoring and Reporting 87-6
Monitoring Requirements 87-8
Permits 87-14
Retroactivity 87-10
Standard of Review 87-3, 87-12, Puerto Rico, 1987
State Rules 87-6
State Water Quality Standards 87-1, 87-8, Puerto Rico, 1987
Stay of Proceedings 87-19
Third Parties 87-19
General Counsel Decisions
OGC No. 58 (March 29, 1977) Puerto Rico, 1987
Regulations
40 CFR 122.41 87-14
40 CFR 122.43 87-14
40 CFR 124 Preamble 87-1
40 CFR 124, Subpart E 87-10
40 CFR 124.5(b) 87-10
40 CFR 124.6(d) 87-14
40 CFR 124.60 87-19
40 CFR 124.60(c)(6)(iii) 87-14
40 CFR 124.91 (1985) Puerto Rico, 1987
40 CFR 124.91 (1986) 87-3, 87-12
40 CFR 124.91(a) 87-1
40 CFR 124.91(a)(l) 87-14
40 CFR 124.91(0 87-14
CWA Section
Section 301(b)OXC) 87-1, 87-6, Puerto Rico, 1987
Section 301(b)(2) 87-1
Section 301(m) 87-14
Section 302 87-1
Section 308(a) 87-6
Cross-Referenced Appeals
Appeal No. 78-2 (March 16, 1978) 87-1
Appeal No. 78-7 (August 28, 1978) 87-1, 87-3, Puerto Rico, 1987
Appeal No. 83-2 (July 21, 1983) 87-3, Puerto Rico, 1987
Appeal No. 84-12 (November 6, 1985) 87-1, Puerto Rico, 1987
Appeal No. 86-11 (January 16, 1987) 87-3, Puerto Rico, 1987
-------
KEY WORD TABLE
NPDES Appeal No./Permittee
87-1/Goodyear Aerospace Corp.
(Permit No. NPDES 09-87-0002)
State Water Quality Standards;
Appeal No. 78-7 (August 28, 1978);
Appeal No. 78-2 (March 16, 1978);
Appeal No. 84-12 (June 11, 1985);
Evidentiary Hearings;
40 CFR 124 Preamble;
40 CFR 124.91 (a);
Section 302;
Section 30 l(b)(l)(C);
Section 30I(b)(2)
87-3/Crockett County Water Control and Improvement District No. 1
(Docket No. TX00098345)
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16, 1987);
87-5/Massachusetts Water Resources Authority
(Permit No. MA102351)
87-6/Occidental Chemical Agricultural Products, Inc.
(Permit No. FL0036226)
Section 301(bXl)(C);
State Rules;
Effluent Limitations;
87-8/Star-Kist Samoa, Inc./Samoa Packing Company
(Permit Nos. AS0000019 and
AS0000027)
(Docket No. NPDES 09-87-0003)
Water Quality Standards;
Interim Limits;
Monitoring Requirements;
87-10/City of Sarasota
(Permit No. FLOO24791)
40 CFR I24.5(b);
40 CFR 124, Subpart E;
Retroactivity;
87-1 I/City of New Bedford
(Permit No. MA0100781)
87-12/City of Port St. Joe, Florida
(Permit No. FL0020206)
Standard of Review;
Evidentiary Hearing;
40 CFR 124.91 (1986)
Standard of Review;
Evidentiary Hearing;
40 CFR 124.91 (1986);
Section 308(a);
Monitoring and Reporting
Forums;
Public Comment Periods
Compliance Schedules;
Appeal Procedures
-------
87-14/Simpson Paper Company
(Permit No. CAOOOS282)
Louisiana-Pacific Corporation
(Permit No. CA0005894)
(Docket No. NPDES-09-87-0005)
Jurisdiction;
Section 301(m);
Effluent Limitations;
40 CFR 124.91(a)(l);
Permits;
Alternative Limitations;
87-19/Keoneth H. Manning
40 CFR 124.60;
Stay of Proceedings;
Third Parties
/Puerto Rico Aqueduct and Sewer Authority
(Permit Nos. II WP-86-07 to 19)
[See actual appeal for list of treatment plants]
Evidentiary Hearing;
Standard of Review;
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16, 1987);
40 CFR 124.91 (1985);
40 CFR 124.60(c)(6)(iii)
40 CFR 122.41
40 CFR 122.43
40 CFR 124.6(d)
40 CFR 124.91(0
Appeal No. 84-12 (November 6,
OGC No. 58 (March 29, 1977);
Effluent Limitations;
State Water Quality Standards;
Section 301(b)(IXC)
1985);
-------
State Water Quality Standards;
Appeal No. 78-7 (August 28, 1978);
Appeal No. 78-2 (March 16, 1978);
Appeal No. 84-12 (November 6, 1985);
Evidentiary Hearings;
40 CFR 124 Preamble;
40 CFR 124.91 (a);
Section 302;
Section 30l(b)(0(C);
.Section 301(b)(2)
NPDES Appeal No.: 87-1
Documents Available:
Order Denying Review, September 26, 1989.
Permittee:
Goodyear Aerospace Corp.
(Permit No. NPDES 09-87>0002)
Background:
Permittee seeks review of the RA's denial of the request for an evidentiary hearing. Permittee
claims that technologically unachievable permit limitations adopted to satisfy state water quality
standards are too stringent. Permittee also claims that since limitations are more stringent than
required by Section 301, Permittee is entitled to a hearing to determine if limitations should be
included in permit.
Issue m:
Under 301(b)(l)(C), does EPA have discretion to alter state water quality standards where the
implementation of the standards may be technologically unachievable?
Discussion (II:
No. Section 301(b)(l)(C) requires EPA to implement State water quality standards which are
more stringent than those required under Federal law.
Issue (ID:
Does Section 302 require EPA to hold a hearing to determine if limitations more stringent than
required by Section 301 should be included in a permit, where the more stringent standards are
not technology-based?
Discussion (II):
No. Section 302 only applies when EPA determines that technology-based effluent limitations
imposed by Section 30l(b)(2) would interfere with water quality goals. Since the limitation
imposed is not technology-based. Section 302 does not apply.
Disposition: The petition for review is denied.
-------
Appeal No. 78-7 (August 28, 1978); Standard of Review;
Appeal No. 83-2 (July 21, 1983); Evidentiary Hearing;
Appeal No. 86-11 (January 16, 1987); 40 CFR 124.91 (1986)
NPDES Appeal No.: 87-3
Documents Available:
Order Denying Petition for Review, May 5, 1987.
[Also refer to the October 23, 1986 ruling on this permit, after which the Region rescinded its
earlier grant of an evidentiary hearing request.]
Permittee:
Crockett County Water Control and Improvement District No. 1
(Docket No. TX00098345)
Background:
Petitioner, a private party, seeks review of the RA's, denial of a reqeust for an evidentiary
hearing. Both the Region and Permittee oppose granting review.
Issue:
Should a petition for review normally be granted when the decision is neither clearly erroneous
nor involves an exercise of discretion or policy that is important and therefore should be
reviewed as a discretionary matter?
Discussion:
No. The regulations do not confer as automatic right to have a decision reviewed on appeal. 40
CFR 124.91 (1986).
Disposition: Petition for Review denied.
-------
NPDES Appeal No.: 87-5
Documents Available:
Correspondence between Chief Judicial Officer and Permittee's Counsel, April 22, 1987.
Permittee:
Massachusetts Water Resources Authority
(Permit No. MA 102351)
Background:
Permittee filed a petition for review of the RA's denial of its request for an evidentiary hearing.
Disposition: Petition for Review dismissed at Permittee's request.
-------
Section 301 (b)( 1 )(C); Section 308(a);
State Rules; Monitoring and Reporting
Effluent Limitations;
NPDES Appeal No.: 87-6
DflcjumentsAvailable:
Order Denying Review, March 23, 1990.
Pgrjntitjee:
Occidental Chemical Agricultural Products, Inc.
(Permit No. FL0036226)
Background:
Permittee petitions for review of a decision of the Region IV RA denying request for an
evidentiary hearing.
Issue (D:
Can an NPDES permit include a state rule which is not a state water quality standard or effluent
limitation imposed under state regulation?
Discussion (D:
Yes. Section 30l(b)(l)(C) authorizes EPA to write permits that incorporate any more stringent
State limitation. Such limitations need not be an effluent limitation. The subject matter of any
State rule or regulation imposed only needs to fit the ordinary meaning of "limitation." Inclusion
in a permit operates as a restriction on the discharger's discretion in discharging pollutants.
Issue (ID:
Does EPA possess independent authority to prescribe monitoring and reporting requirements in
permits?
Discussion (ID:
Yes. Section 308(a) authorizes EPA to designate itself as the entity entitled to receive reports and
prescribe monitoring requirements.
Disposition: Permittee's petition for review is denied.
-------
State Water Quality Standards; Forums;
Interim Limits; Public Comment Period
Monitoring Requirements;
NPDES ApoealNo.: 87-8
Documents Available:
Order Denying Petition for Review, September 26, 1989
Order Denying Petition for Reconsideration, November 3, 1989
Permittee:
Star-Kist Samoa, Inc.
(Permit No. AS0000019)
Samoa Packing Company
(Permit No. AS0000027)
(Docket No. NPDES 09-87-0003)
Background:
Permittee petitions for review of partial denial of request for an evidentiary hearing by Region
IX RA. Petition for review grounded on fourteen issues, several related to provisions in the
water quality standards of American Samoa.
Issues:
Permittee seeks review of permit conditions based on territorial water quality standards, and their
interpretation, interim limits, and monitoring requirements.
Discussion:
Four of the issues raised are dismissed for failure to raise them during the public comment period
as required. The remainder are rejected for failing to demonstrate that the RA's decision was
clearly erroneous. Specifically, issues raised related to American Samoa water quality standards
are actually collateral attacks on the standards themselves, rather than their application. An
evidentiary hearing is not the proper forum for this attack. Interim limits and monitoring
requirements are discretionary, and the permittee again has not shown clear error.
Disposition:
Review of the partial denial of evidentiary hearing request denied.
-------
40 CFR 124.5(b); Compliance Schedules;
40 CFR 124, Subpart E; Appeal Procedures
Retroactivity;
NPDES Appeal No.: 87-10
Documents Available:
Correspondence between Chief Judicial Officer and City Manager, August 27, 1987.
Permittee:
City of Sarasota
(Permit No. FL002479I)
Background:
Permittee requested modification of the permit to substitute limitations based on CBOD5 for
BODS. The Region modified the permit, but denied the request to apply these limitations
retroactively. The Region also added a compliance schedule. Permittee contested, by letter, the
Region's refusal to apply the CBODg limitations retroactively, and the incorporation of the
compliance schedule. Permittee is uncertain whether the informal appeal procedures under 40
CFR I24.5(b), or the formal adjudication procedures at 40 CFR Part 124, Subpart E, govern.
Thus, Permittee also filed a request for an evidentiary hearing on both issues under Subpart E.
The Region is considering the request.
Issue:
Should Permittee's request for review under 40 CFR 124.5, rather than 40 CFR Part 124, Subpart
E, be granted regarding the retroactivity and compliance schedule issues?
Discussion:
No. Either the informal appeal procedures under 40 CFR 124.5(b) or the formal adjudication
procedures at 40 CFR Part 124, Subpart E be used; however, since the Region's decision on the
hearing is imminent, the better appeal course is Subpart E, which applies to situations where an
evidentiary hearing has been granted or denied. The informal appeal under 40 CFR I24.5(b)
applies when the RA denies a request for permit modification, but in this instance there has been
no denial per se.
Disposition: Request for Review under 40 CFR 124.5 denied, without prejudice to Permittee's
right to pursue an appeal under 40 CFR Part 124, Subpart E.
-------
NPDES Appeal No.: 87-11
Documents Available:
Order Dismissing Petition for Review, January 29, 1988.
Permittee:
City of New Bedford
(Permit No. MAO 100781)
Background:
Permittee filed a petition seeking review of the RA's denial of its request for an evidentiary
hearing. In accordance with the terms of a subsequent consent decree, Permittee has withdrawn
petition for review.
Disposition: Appeal dismissed.
-------
Standard of Review;
Evidentiary Hearing;
40 CFR 124.91 (1986)
NPDES Appeal No.: 87-12
Documents Available:
Order Denying Petition for Review, October 27, 1987.
Permittee:
City of Port St. Joe, Florida
(Permit No. FL0020206)
Permittee seeks review of the RA's denial of a request for an evidentiary hearing.
Issue:
Should a petition for review normally be accepted when this decision is neither clearly erroneous,
nor involves an exercise of discretion or policy which is important and which should be reviewed
as a discretionary matter?
Discussion;
No. The regulations do not confer an automatic right to have a decision reviewed on appeal, 40
CFR 124.91 (1986).
Disposition: Petition for Review denied.
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Jurisdiction;
Section 301(m);
Effluent Limitations;
40 CFR 124.91(a)(l);
Permits;
Alternative Limitations;
40 CFR 124.60(c)(6)(iii);
40 CFR 122.41;
40 CFR 122.43;
40 CFR 124.6(d);
40 CFR 124.91(f)
NPDES Appeal No.: 87-14
Documents Available:
Order on Petitions for Review, March 19, 1990.
Interim Final Order, April 26, 1990.
Permittee:
Simpson Paper Company
(Permit No. CA0005282)
Louisiana-Pacific Corp.
(Permit No. CA0005894)
(Docket No. NPDES-09-87-0005)
Background:
Permits issued were modified in accordance with section 301(m), which allows relaxation of
applicable effluent limitations for Biochemical Oxygen Demand and pH for these two particular
dischargers. Hearing requests received from the permittees and from a coalition of public
interest groups were granted in part and denied in part by the EPA Regional Administrator (RA)
for Region IV. The coalition raises eight issues on appeal, while the permittees seek review of an
RA decision to impose alternative interim requirements for acute and chronic toxicity testing.
Issue (I):
Do EPA's regulations on administrative appeals grant jurisdiction for review of matters related to
the grant of an evidentiary hearing?
Discussion(|):
No. Review of the decision to impose alternative interim requirements is denied for lack of
jurisdiction. Under section 124.91(a)(l), jurisdiction for appeals is limited to two types of
decisions; initial decisions of an Administrative Law Judge; and the denial of a request for an
evidentiary hearing by a Regional Administrator. In the instant case, an evidentiary hearing had
been granted on issues of acute and chronic toxicity testing, with the alternative interim
requirements ensuing. Though there may have been no basis for the imposition of alternative
requirements (ssfi 40 CFR 12460(c)(6)(iii)), there is no jurisdictional basis for the Administrator
to review the decision.
Issue fll):
Does a permit provision allowing substitution of effluent limitations for suspended solids and
light transmittance with "alternative limitations" (set by State Board and approved by EPA) which
are presently unknown and unascertainable circumvent public participation procedures and
further requirements that a permit contain all conditions required by the applicable regulations
(5fifi40 CFR 122.41, 122.43, 122.44(a) & (b), 124.6(d))?
Discussion (III:
Yes. Review was granted on this issue, and consequently the permit was modified to make the
formal permit modification procedures of 40 CFR 124 applicable to future changes to the
permits' suspended solids and light transmittance limitations. Hence the issue has been rendered
moot.
Disposition; The petitions for review are denied except for the sole issue of whether of permit
conditions allowing "alternative limitations." Review of this issue dismissed as moot in the
interim. Final resolution of this issue will not occur until all permit modifications and appeals
are resolved.
-------
40 CFR 124.60;
Stay of Proceedings;
Third Parties
NPDES Aooeal No.: 87-19
Documents Available:
Permittee:
Kenneth H. Manning
Background:
Region denied application for permit renewal because permittee failed to provide any discharge
monitoring reports in 1986, in violation of his expired NPDES permit. Applicant claimed that
reporting requirements were unconstitutional and that on-going hearing and appeal of his expired
permit had stayed the permit's reporting requirements. Region denied request for a hearing
because reporting was required by EPA regulation. Review granted by Administrator to address
contention that reporting requirements were stayed by evidentiary hearing on expired permit.
Issue:
For contested permit conditions to be stayed pursuant to 40 CFR 124.60, must an evidentiary
hearing be requested by permittee himself?
Discussion:
Yes. In this case, request for hearing had been requested by trade association challenging
identical conditions across several permits. Such third party requests do not operate to stay
conditions in individual permits. Permittee had not requested a hearing nor had someone else
make a request on his behalf.
Disposition:
Denial of NPDES permit affirmed.
-------
Evidentiary Hearing;
Standard of Review;
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16, 1987);
40 CFR 124.91 (1985)
NPDES Appeal No.:
Documents Available:
Order Denying Petition for Review, April 8, 1987.
Permittee:
Puerto Rico Aqueduct and Sewer Authority
(Permit Nos. II WP-86-07 to 19)
Caguas Sewage Treatment Plant
San German Sewage Treatment Plant
Yauco Sewage Treatment Plant
Villa Carolina Sewage Treatment Plant
Orocovis Sewage Treatment Plant
de Carolina Sewage Treatment Plant
Appeal No. 84-12 (November 6, 198S);
OGC No. 58 (March 29, 1977);
Effluent Limitations;
State Water Quality Standards;
Section 30 l(b)(l)(C)
Cayey Sewage Treatment Plant
Dorado Sewage Treatment Plant
Aguas Buenas Sewage Treatment Plant
Gurabo Sewage Treatment Plant
Humacao Sewage Treatment Plant
Vega Baja Sewage Treatment Plant
Ciales Sewage Treatment Plant Lomas
Background:
Permittee seeks review of the RA's denial of the request for an evidentiary hearing. Permittee
claims that EPA has no authority to claim independent responsibility to enforce State water
quality standards apart from whatever standards and limitations the State certifies or waives
under CWA §401.
Issued):
Does EPA have independent authority to impose stricter permit limits than State certified limits
which the Agency considers too lax in order to enforce State water quality standards?
Discussion fD:
Yes. CWA §301(b)(lXC) calls for compliance with State water quality standards, without
reference to State certification under §401. Also, an EPA final decision in 1985 confirms that
EPA can independently apply §301(b)(l)(C) to set more stringent conditions and limitations in a
permit, based or State water quality standards.
Issue nil:
Is a petition for review normally accepted when the decision is neither clearly erroneous, nor
involves an exercise of discretion or policy which is important and therefore should be reviewed
as a discretionary matter?
Discussion (II):
No. The regulations do not confer an automatic right to have a decision reviewed on appeal. 40
CFR 124.91 (1985).
Disposition: Petition for Review denied.
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-------
INDEX
Issues Appeal No.
Anti-Backsliding 88-5, 88-10
Antidegradation 88-1
Beneficial Use Limitation 88-1
Cancellation of NPDES Permit Sunbeam, 1989
Compliance 88-1
Compliance Date Extensions 88-5
Compliance Schedules 88-5
Evidentiary Hearing 88-1, 88-5
Historic Preservation 88-4
Interim Limitations 88-5
Legal Standards 88-1
Net Limitations 88-5
Other Sources 88-10
Permit Modifications 88-4
Reopener Clauses , 88-4
Section 404 Permits Sunbeam, 1989
Standard of Review 88-1, 88-5
State Regulations 88-4
State Water Quality Standards 88-1
Stay of Proceedings Sunbeam, 1989
Stream Flow Augmentation 88-10
Striking Issues 88-1
Technology 88-1
Use Designations 88-4
Water Quality Standards, Revisions 88-4
General Counsel Decisions
OGC No. 45 (June 23, 1976) 88-5
OGC No. 58 (March 29, 1973) 88-1, 88-5
Regulations
36 CFR 800.1 l(b) 88-4
40 CFR 122.26(a)(3Xi)(G) 88-4
40 CFR 122.4(d) 88-1
40 CFR 122.43(b)(l) 88-1
40 CFR 122.47(a)(D 88-5
40 CFR 124.83(c)(D 88-1
40 CFR 124.84 88-1
40 CFR I25.85(b)(4) 88-1
40 CFR124.91(c)(l) 88-3
40 CFR 124.91(a) 88-5
40 CFR 131.12 88-1
CWA Section
Section 301(bXlXQ 88-1, 88-5
Section 402(o) 88-10
Cross-Referenced Appeals
Appeal No. 78-2 (March 16, 1978) 88-5
Appeal No. 78-7 (August 28, 1978) 88-1, 88-3, 88-5
Appeal No. 80-3 (May 15, 1980) 88-1
Appeal No. 83-2 (July 21, 1983) 88-3, 88-5
Appeal No. 86-11 (January 16, 1987) 88-3
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KEY WORD TABLE
NFDES Appeal No./Permittee
88-1/ City of Fayetteville, Arkansas
(Permit No. AROO200710)
Benefical Use Limitations;
Antidegradation;
Standard of Review;
Evidentiary Hearing;
Appeal No. 80-3 (May 15, 1980);
Appeal No. 78-7 (August 28, 1978);
Striking Issues;
40CFR 124.83(c)(D;
40 CFR 124.84;
40CFR 122.43(b)(0;
88-2/ City of Sarasota, Florida
(Permit No. FL0021479)
88- 7 Public Service Company of Colorado
(Fort St. Vrain Station)
(Permit NO. COOOOmi)
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
88-4/ Albuquerque Utilities Corporation
(Permit No. NM0029602)
Historic Preservation;
36CFR800.11(b);
Permit Modifications;
Reopener Clauses;
88-5/Star-Kist Caribe, Inc.
(Permit No. PR0022012)
OGC No. 58 (March 29, 1973);
OGC No. 45 (June 23, 1976);
Compliance Date Extensions;
Appeal No. 78-7 (August 28, 1978);
Appeal No. 78-2 (March 16, 1978);
Appeal No. 83-2 (July 21, 1983);
Standard of Review;
Evidentiary Hearing;
88-8/ Revere Copper Products
40 CFR 131.12;
40 CFR 125.85(b)(4);
40 CFR 122.4(d);
Technology;
Legal Standards;
State Water Quality Standards;
Section 301(b)(lXC);
Compliance;
OGC No. 58 (March 29, 1977)
Appeal No. 86-11 (January 16, 1987);
40 CFR 124.91(c)(l)
40 CFR 122.26(a)(3)(i)(C);
Water Quality Standards, Revisions to;
Use Designations;
State Regulations
40 CFR 124.91(a);
40 CFR 122.47(a)(l);
Section 301(b)(l)(C);
Compliance Schedules;
Interim Limitations;
A nti- Backsliding;
Net Limitations
88-9/ South Essex Sewerage District
(Permit No. MA0100501)
-------
88-10/City of Tulsa, Oklahoma
(Permit No. OK0026221)
Antibacksliding;
Stream Flow Augmentation;
Other Sources
88-111 Metropolitan Denver Sewage District No. 1
(Permit No. CO0026638)
/Sunbeam Mining Corporation/Grouse Creek Mining Inc.
(NPDES Docket Nos. 1088-10-03-402
and 1088-10-04-402)
Stay of Proceedings;
Section 404 Permits;
Cancellation of NPDES Permit
-------
Beneficial Use Limitations; 40 CFR 131.12;
Antidegradation; 40 CFR 125.85(b)(4);
Standard of Review; 40 CFR 122.4(d);
Evidentiary Hearing; Technology;
Appeal No. 80-3 (May 15, 1980); Legal Standards;
Appeal No. 78-7 (August 28, 1978); State Water Quality Standards;
Striking Issues; Section 30I(b)(l)(C);
40 CFR 124.83(c)(l) Compliance;
40 CFR 124.84; OGC No. 58 (March 29, 1977)
40 CFR I22.43(b)(l);
NPDES Appeal No.: 88-1
Documents Available:
Initial Decision, January 12, 1988.
Order on Petitions for Review, June 28 1988.
Order Denying Motions for Reconsideration, September 12, 1988.
Second Order on Petitions for Review, December 22, 1988.
Permittee:
City of Fayetteville, Arkansas
(Permit No. AR00200710)
Background:
The Attorney General of the State of Oklahoma (on behalf of various Oklahoma parties), "Save
the Illinois River" (STIR), and the Oklahoma Wildlife Federation seek review of the ALJ's Initial
Decision upholding the permit issued for discharges of treated sewage effluent. The permit
authorizes discharges into an intrastate stream (not at issue), and into Mud Creek, where the
effluent would travel approximately 39 miles in Arkansas before entering Oklahoma by way of
the Illinois River, an interstate stream.
Issue fl):
Did the ALJ properly dismiss the issue of the ability of the new plant technology to meet the
permit's effluent limits?
Discussion (I):
Yes. Petitioners have not shown that the ALJ's dismissal of the technology issue is clearly
erroneous or otherwise warrants review. The NPDES program focuses on the specification of
effluent limits sufficient to ensure various levels of protection, not particular technologies to
meet such limits. The structure, terms, and legislative history of the CWA reflect a preference
for this approach. Although the ALJ arguably overstated the case in asserting that the Agency
has no authority under the CWA to order the application of particular technology, EPA routinely
has declined, as a matter of policy, to specify treatment equipment or techniques in NPDES
permits. The ALJ has the authority, despite the RA's initial designation of the technology issue,
to simplify, limit, and strike issues to focus and expedite the hearing. See 40 CFR Section
124.83(c)(l), 124.84 and 124.85(b)(4). The permit prohibits untreated discharges, and to speculate
about impairment of water quality standards by permit violations, rather than by the permit
itself, is outside the scope of the proceeding.
Issue
Did the ALJ err in interpreting and applying relevant beneficial use limitations, antidegradation
policy and nutrient standards?
-------
Discussion (III:
No. Petitioners failed to demonstrate clear error. ALJ had implicitly addressed antidegradation
policy through consideration of components of degradation (aesthetic standards, eutrophication,
etc.) and determination that no detectable change would occur in any component. Issues of
beneficial use limitations and nutrient standards had been similarly addressed.
Issue din:
Did the ALJ apply the proper legal standard in deciding whether discharges under the permit
would violate Oklahoma's water quality standards?
Discussion (ID:
No. It was clear error and a misapplication of precedent for the ALJ to apply an "undue impact"
(reasonable) or "de minimis" (significance) standard, rather than require strict compliance with
applicable State water quality standards under CWA Section 301(b)(l)(C) and 40 CFR 122.4(d).
In the Initial Decision, the ALJ stated the permit's impact on Oklahoma's water quality would be
immeasurable "in most cases." This suggests that in some cases the impairment might be
detectable and would thus violate the CWA. A mere theoretical impairment of Oklahoma's water
quality standards—i.e., an infinitesimal impairment—should not block the issuance of the permit,
however. In this case, the permit should be upheld if the record shows by a preponderance of
the evidence that the authorized discharges would not cause an actual detectable violation of
Oklahoma's water quality standards.
Issue (IV):
Did ALJ err in ruling that applicable water quality standards were those promulgated in 1985,
after the issuance of the permit, rather than those in existence at time permit was issued,
promulgated in 1982?
Discussion (IV):
Yes. However, any differences between the 1982 and 1985 standards will have no bearing on the
relevant standards in the permit, hence the error is harmless.
Disposition: Review of the ALJ's dismissal of the technology issue is denied; however, since the
ALJ applied the wrong legal standard, the proceeding is remanded for a determination of
whether discharges under the permit will result in a detectable violation of the applicable state
water quality standards. Detailed findings are necessary. Applicable water quality standards for
this determination are Oklahoma's 1982 standards.
-------
NPDES Appeal No.: 88-2
Documents Available:
Order Granting Motion to Dismiss Petitions for Review, April 19, 1989.
Permittee:
City of Sarasota, Florida
(Permit No. FL0021479)
Disposition: Unopposed Region IV motion to dismiss petition for review granted for cause
shown; Region IV and the permittee entered into a consent decree to resolve issues raised in the
petition.
-------
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16, 1987);
40CFR 124,91(c)(l)
NPDES Anneal No.: 88-3
Documents Available:
Order Denying Review, September 28, 1989.
Permittee:
Public Service Company of Colorado
(Fort St. Vrain Station)
(Permit No. NPDES CO-0001121)
Disposition: Review of petition request for an evidentiary hearing is declined. Petitioner has not
demonstrated that review should be granted.
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Historic Preservation; Permit Modifications;
Reopener Clauses; Water Quality Standards, Revision;
36 CFR 800.1 l(b); Use Designations;
40 CFR 122.62(a)(3)(i)(C); State Regulations
NPDES Anneal No.: 88-4
Documents Available:
Response of Region VI to Petition for Review, December 5, 1988.
Order on Petition for Review, April 26, 1989.
Permittee:
Albuquerque Utilities Corporation
(Permit No. NM0029602)
Background:
Review sought of EPA Region VI Regional Administrator's (RA) decision to deny in part a
request for an evidentiary hearing. Petition for review based on three issues denied by RA.
Review of issues raised in petition is denied, but case is remanded to Region VI for an
evidentiary hearing on two other issues relating to subsequent intervening developments.
Issue fit
Should a permit be modified to address the outcome of the review of a site under section 106 of
the National Historic Preservation Act for placement on the Natural Register of the Historic
Places, when the site has been deemed eligible for placement?
Discussion (I):
Under the National Historic Preservation Act, a section 106 review is required where eligible
properties are discovered during the implementation of an undertaking. The provisional status of
the permit in question determines that EPA must conduct a section 106 review of the eligible site
to the extent necessary to establish the impact of the permitted activity and whether
modifications are needed in the permit conditions before it becomes final. The Administrator
also notes that should the section 106 review remain pending after the hearing is completed, the
permit should contain provisions for its reopening and modification to incorporate the findings of
the section 106 review.
Issues QTj:
Should a permit contain a reopener clause allowing modification if state review of its water
quality standards show that the proper use designation of the impacted waterbody is different
from that established under a provisional permit?
Discussion (III:
Normally, the proper forum for challenges to state water quality standards is in state proceedings.
However, in the instant case, the Region had requested that State to conduct a review to assure
proper designation. While modification to the permit will occur before it is finalized in the event
that the use designation changes, there is no provision for reopening the permitting proceedings
should a change in designation occur after the final permit is issued. The case is therefore
remanded for determination of whether the clause should be included.
While the regulations only require a permit to contain standards applicable at the time of
issuance, it may be appropriate for EPA, as representative of the public interest, to take
affirmative steps to assure compliance with water quality standards revisions. Generally,
modifications to existing permits based on compliance with new or revised water quality
standards are not made unless requested by the permittee.
Disposition:
The proceeding is remanded to EPA Region VI to provide the petitioner with an opportunity for
an evidentiary hearing on the issues discussed.
-------
OGC No. 58 (March 29, 1973);
OGC No. 45 (June 23, 1976);
Compliance Date Extensions;
Appeal No. 78-7 (August 28, 1978);
Appeal No. 78-2 (March 16, 1978);
Appeal No. 83-2 (July 21, 1983);
Standard of Review;
Evidentiary Hearing;
40 CFR 124.9l(a);
40CFR 122.47(a)(i);
Section 301(b)(l)(C);
Compliance Schedules;
Interim Limitations;
Ami-Backsliding;
Net Limitations
NPDES Appeal No.: 88-5
Documents Available:
Order Denying Petition for Review, March 8, 1989.
Order on Petition for Reconsideration, April 17, 1990.
Permittee:
Star-Kist Caribe, Inc.
(Permit No. PR0022012)
Background:
The Region had issued an initial permit without a water quality certificate from the Puerto Rico
Environmental Quality Board (EQB). When the EQB eventually issued the final water quality
certificate, the Region modified the permit to reflect changes in the water quality requirements.
Permittee seeks review of the RA's denial of its request for an evidentiary hearing regarding this
modified permit.
Issue m:
Does EPA lack authority to include in the permit interim limitations and a schedule of
compliance that would extend compliance dates beyond the statutory deadlines?
Discussion (I):
Yes. The permit limitations were derived from the State water quality standards in effect at the
time of permit issuance, as required by 40 CFR 122.43(b)(l). Furthermore, Federal courts have
repeatedly held that the prescribed deadlines of CWA §301(b) are binding on EPA, and that EPA
has no authority to extend them, except where provided by Congress. The only instance where a
compliance schedule may be authorized is where the scheduled is added persuant to authority
contained in State water quality standards or regulations implementing those standards. Congress
intended the States, and not EPA, to be the proper authorities to define deadlines for compliance
with their own State laws. Both the clear mandate of §301(b)(l)(C) and the express language of
40 CFR 122.47(a) indicate that extensions of statutory deadlines are unauthorized, regardless of
whether a water quality standard was adopted prior to or after July 1, 1977.
Issue
Did the RA err is determining that EPA's anti-backsliding regulation prohibits an increase in the
biochemical oxygen demand (BOD) and total suspended solids (TSS) limitations in the permit?
Discussion (U):
No. Under 40 CFR 122.44(1) (upheld by a federal circuit court in 1988), when a permit is
renewed or reissued, the conditions in the new permit must be at least as stringent as the
conditions in the previous permit. This section applies to all permit conditions, regardless of
whether they are based on "best professional judgement" (BPJ). Neither the CWA nor EPA's
regulations allow backsliding to less stringent technology- based limitations based on a net
improvement of water Quality due to increased efficiency of a separate discharging facility.
-------
Issue
Did the RA commit clear error in upholding the definition of "net limitation" contained in the
permit, and denying a hearing on whether the EPA definition at 40 CFR 122.45(gXl) should be
used rather than the more stringent EQB definition?
Discussion (IIP:
No. 40 CFR 122.45(g)(l) applies only to technology- based limitations, while the definition in the
permit applies only to water quality based standards. Since EPA must include in a permit any
state requirements necessary to achieve water quality standards (40 CFR 122.44(d)(l)), the
definition of net limitation as provided by EQB in the water quality certifications must be
included. Permittee has not demonstrated that due process requires EPA's definition of net
limitations apply to water quality based permits.
Disposition: Petition for Review denied.
-------
NPDES Appeal No.: 88-8
Documents Available:
Correspondence between EPA Chief Judicial Officer and Stephen H. Kaprelien, September 28,
1988.
Permittee;
Revere Copper Products, Inc.
Disposition: Pursuant to 40 CFR 124.5 (b), appeal was automatically denied sixty days after
receipt following CJO decision to take no action.
-------
NPDES Appeal No.: 88-9
Documents Available:
Order Granting Motion to Dismiss, August 28, 1989.
Permittee:
South Essex Sewerage District
(Permit No. MAO 100501)
Issueg:
RA ruling that permittee would be unable to demonstrate ability to meet removal requirement
until after construction and start up of secondary treatment plant; timeliness of submission of
documents; rulings based on proposed regulations; notice.
Disposition; EPA Region I motion to dismiss permittee's appeal was granted for cause shown; the
permit at issue had been modified.
-------
Section 402(o);
Antibacksliding;
Stream Flow Augmentation;
Other Sources
NPDES Appeal No.: 88-10
Documents Available:
Permittee:
City of Tulsa, Oklahoma
(Permit No. OK.0026221)
Background:
Petitioner, Allen D. West, seeks review of the RA's denial of his request for an evidentiary
hearing concerning provisions for use of augmented streamflow in the City's NPDES permit. The
RA denied the request on the grounds that it raised only legal issues. Petitioner contends that
both legal and factual issues were raised in the request for an evidentiary hearing and seeks a
hearing to resolve the factual issues. The Region, responding on February 22, 1989, argues that
the petition should be denied. Mr. West then filed a motion for summary dismissal of the
decision to issues the permit, on February 24, 1989 and on March 3, 1989 filed a reply to the
Region's response to the petition for review.
Issue;:
Petitioner raises several issues related to permit's stream flow augmentation plan and other
omissions in the permits specifically. These issues are as follows:
• Is stream flow augmentation legally available as a substitute for appropriate water
treatment?
• Does stream flow augmentation provision violate Section 402(o) backsliding prohibition?
• Does the permit improperly fail to mention or consider water releases from the other
sources related to the permitted activity?
Disposition:
Decision of the Administrator is pending as of May 1, 1990
-------
NPDES Appeal No.: 88-11
Documents Available:
Correspondence between EPA Chief Judicial Officer and Mr. Jerry W. Raisch, September 6,
1989.
Permittee:
Metropolitan Denver Sewage Disposal District No. 1
(Permit No. CO0026638)
Disposition:
Pursuant to permittee's filing of a Withdrawal of Petition for Review, the appeal file was closed
as of September 6, 1989.
-------
Stay of Proceedings;
Section 404 Permits;
Cancellation of NPDES Permits
NPDES Appeal No.:
Documents Available:
Order Granting Motion for Stay of Proceedings, August 17, 1989
Permittee:
Sunbeam Mining Corporation/Grouse Creek Mining Inc.
(NPDES Docket Nos. 1088-10-03-402 and 1088-10-04-402)
Background:
Parties including the National Wildlife Federation (NWF) challenged the issuance of NPDES
permit by seeking an evidentiary hearing. A hearing was granted in part; two issues raised by
NWF were denied. NWF appealed the partial denial and sought a stay of proceedings pending a
ruling on the appeal. In the meantime, permittee Sunbeam Mining was acquired by Grouse Creek
Mining, who moved for a stay of proceedings in order to implement changes in the permitted
discharge method. The new method will require a Section 404 permit issues by the Corps of
Engineers rather than the Section 402 permit. Several issues raised prior to the acquisition of
Sunbeam and the planned changes in method will be rendered moot as the NPDES permit will be
effectively cancelled.
Issue:
Is it reasonable for a stay to be requested by a permittee in order to effectuate a change in
discharge methods that will cancel an NPDES permit?
Discussion:
Yes. First, the anticipated period of the stay is judged reasonable (in this case, three months).
Second, the adversely affected party in the case is the proponent of the stay. The only party that
may legitimately complain of the grant of the stay has moved for the stay.
Disposition:
A three month stay is granted pursuant to permittees motion.
-------
-------
INDEX
Issues Appeal No.
Administrative Procedure 89-14
Available Technology 89-4
Burden of Proof 89-4
Compliance Schedules 89-1
Enforcement 89-4
Evidence 89-1
Jurisdiction 89-14
Non-NPDES Issues 89-15
Parties . 89-14
Permit Limits 89-4
Signature Requirements 89-20
Standard of Review 89-4
State Appeals 89-1
Test Species 89-4
Regulations
40 CFR I24.22(b) 89-20
40 CFR 124.73(0) 89-20
40 CFR 124.90 89-14
40 CFR 124.91 89-14
40 CFR 124.91(c)(l) 89-2, 89-4, 89-13, 89-15, 89-17
Cross-Referenced Appeals
Appeal No. 78-7 (August 28, 1978) 89-2, 89-4, 89-13, 89-15, 89-17
Appeal No. 83-2 (July 21, 1983) 89-2, 89-4, 89-13, 89-15, 89-17
Appeal No. 86-11 (January 16, 1987) 89-2, 89-4, 89-13, 89-15, 89-17
Other Citations
5 U.S.C. 557(b) 89-14
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KEY WORD TABLE
NPDES Appeal No./Permittee
89-1/ City of Marlborough, Massachusetts
(Permit No. MAO 100498)
State Appeals;
Compliance Schedules;
Evidence
89-2/ City of Plantation, Florida
40 CFR 124.91(c)(l);
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16,1987)
89-4/ Buckman Wastewater Treatment Plant
(Permit No. FL0026000)
Available Technology;
Test Species;
Enforcement;
Permit Limits;
Standard of Review;
89-S/ Miami - Dade Water and Sewer Authority
(Permit No. FL0032182)
89-6/ Agrico Chemical Co.
(Permit No. FL0000370)
89-7/ Hi-Tek Polymers, Inc.
(Permit No. TX0088781)
89-S/ Louisiana Army Ammunition Plant
U.S. Department of the Army
Morton Thiokol
(Permit No. LA0003549)
89-9/ Louisiana Army Ammunition Plant
U.S. Department of the Army
Morton Thiokol
(Permit No. LA0003549)
89-11/ Bethlehem Steel Corporation
89-12/ Cerro Copper Products Company
Burden of Proof;
40 CFR 124.91(c)(l);
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16, 1987)
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89-13/49 Alaska Placer Mines, More or Less
(Docket Nos. 1088-05-05-402 &
1088-05-27-402)
40 CFR 124.91(c)(l);
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16,1987)
89-14/ 539 Alaska Placer Miners, More or Less, and 415 Alaska Placer Miners, More or Less
(Docket Nos. 1085-06-14-402C; and 1087-08-03-402C)
40 CFR 124.91;
Jurisdiction;
40 CFR 124.90;
Parties;
5 U.S.C. 557(b);
Administrative Procedure
89- IS/ Hillsborough County Valrico Wastewater Treatment Plant
(Permit No. FL0040983)
Non-NPDES Issues;
40 CFR 124.91(c)(l);
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16, 1987)
86-16/Alyeska Pipeline Service Company
89-17/Corporacion Azucarera de Puerto Rico
(Permit No. PR0021415)
40 CFR 124.9 l(c)(l);
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16,1987)
89-20/Montana de Fibra, Inc.
(Permit No. NM0029718)
Signature Requirements;
40 CFR 124.73(b);
40 CFR 122.22(b)
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State Appeals;
Compliance Schedules;
Evidence
NPDES Appeal No.: 89-1
Documents Available:
Permittee:
City of Marlborough, Massachusetts
(Permit No. MA0100498)
Background'
Permittee filed an appeal from an RA denial of requests for an evidentiary grounded in issues of
ripeness, compliance scheduling and admissibility of evidence.
Issues:
The following are the specific issues raised by the permittee.
• Did the RA act improperly in issuing a denial of an evidentiary hearing request while
the permittee's appeal to the State regarding a phosphorus limit was pending?
• Did the RA err in requiring the permittee to comply with chlorine residual limitations
immediately, without allowing time for the planning and installation of additional
facilities?
* Did the RA fail to consider evidence concerning chlorine residual limitations to be a
timely and proper comment?
Disposition:
Decision of the Administrator is pending as of May i, 1990.
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40CFR 124.91(c)(l);
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16, 1987)
NPDES Appeal No.: 89-2
Documents Available:
Order Denying Petition for Review, March 14, 1989
Permittee:
City of Plantation, Florida
Disposition: Review of the denial of the permittee's request for an evidentiary hearing is denied
for failure to demonstrate that review should be granted.
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Available Technology;
Test Species;
Enforcement;
Permit Limits;
Standards of Review;
Burden of Proof;
40CFR 124.91(c)(I);
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 2!, 1983);
Appeal No. 86-11 (January 16, 1987)
NPDES Appeal No.: 89-4
Documents, .AyjUJJlbJg
Order Denying Petition for Review, September 28, 1989.
Permittee:
Buckman Wastewater Treatment Plant
(Permit No. FL0026000)
Issues:
Permittee's appeal rests on five issues:
• Permit limits based on State Water Quality Standards are arbitrary, capricious and
unreasonable.
• EPA failed to demonstrate that failure to meet whole effluent toxicity limits will cause an
adverse impact on the receiving stream.
* The CWA does not allow toxicity- based limitations without consideration of available
technology and costs.
• Use of widely differing test species sensitivities is erroneous.
* Permittee should not be subject to enforcement actions based on toxicity limitations until
technologies are available which can allow compliance with toxicity limits, as long as permittee
exhibits due diligence.
Disposition: Review of the denial of the permittee's request for an evidentiary hearing is denied
for failure to demonstrate that review should be granted.
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NPDES Aooeal No.: 89-5
Documents Availably:
Correspondence between EPA Chief Judicial Officer and the Director of the Miami-Dade Water
and Sewer Authority, March 28, 1989.
Correspondence between EPA Chief Judicial Officer and the Region IV Assistant Regional
Counsel, May 17, 1989.
Permittee:
Miami-Dade Water and Sewer Authority
(Permit No. FL0032182)
Background:
Permittee appeals RA's denial of request for an evidentiary hearing on several issues relating to
toxicity testing conditions in the permit. RA had decided the issues were not factual and
therefore were not suitable for an evidentiary hearing.
Issues:
Issues raised by the permittee quality the validity and consistency of permit requirements and
EPA policy with Florida rules and regulations. Specifically, whether a toxicity testing standard
imposed violated the Florida Administrative Code (FAQ; whether test species referred to in the
permit are significant to the indigenous aquatic community pursuant to the FAC; and whether a
permit condition requiring that lethality found in any test of final effluent will constitute a
permit violation is consistent with EPA policy.
Disposition:
Region IV request for a stay of the appeal is granted pending the conclusion of settlement
negotiations.
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NPDES Appeal No.: 89-6
Documents Available:
Order Granting Motion for Stay of Appeal, April 12, 1989.
Permittee:
Agrico Chemical Company
(Permit No. FL0000370)
Isjue:
Permittee objects to permit condition effectively requiring compliance with state water quality
standards at point of discharge rather than outside requested mixing zone.
Discussion:
Since State has now issued a permit including the requested mixing zone, permittee has requested
a modification of the permit by the Region.
Disposition: Permittee's motion for stay of appeal is granted for cause shown --a modification
of the permit has been drafted which will address issues subject to appeal. Stay is in effect until
further notice.
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NPDES Appeal Np,: 89-7
Documents
Order Granting Motion to Dismiss, March 25, 1990
Permittee:
Hi-Tek Polymers, Inc.
(Permit No. TX008878I)
Disposition: Motion to dismiss appeal filed jointly by EPA Region VI and permittee is granted.
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NPDES Appeal Nos.: 89-8 & 89-9
Documents Available:
Remand, September 13, 1989.
Permittee:
Louisiana Army Ammunition Plant
U.S. Department of the Army
Morton Thiokol
(Permit No. LA0003S49)
Deposition: A contested permit modification is stayed pending final Agency action remanded to
the region for further processing.
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NPDES Appeal No.: 89-11
Documents Available:
Correspondence between EPA Chief Judicial Officer and Region III Assistant Regional Counsel,
June 26, 1989.
Permittee:
Bethlehem Steel Corporation
Disposition:
Stay of appeal granted pending conclusion of settlement negotiations.
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NPDES Appeal No.: 89-12
Documen ft A vailab le:
Correspondence between EPA Chief Judicial Officer and Region V Assistant Regional Counsel,
July 28, 1989.
Permittee:
Cerro Copper Product Company
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40CFR 124.9l(c)(I);
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16, 1987)
NPDES Appeal No.: 89-13
Documents Available:
Order Granting Motion for Enlargement of Time, August 14, 1989.
Order Denying Review, January 4, 1990.
Permittee:
49 Alaska Placer Miners, More or Less
(Docket No. 1088-05-05-402 A
1088-05-27-402)
Disposition: Review of the denial of permittee's request for an evidentiary hearing is denied for
failure to demonstrate that review should be granted.
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40 CFR 124.91; Parties;
Jurisdiction; 5 U.S.C. 557(b);
40 CFR 124.90; Administrative Procedure
NPDES Appeal No.: 89-14
Documents Available:
Correspondence between EPA Chief Judicial Officer and Region X Regional Counsel, August 21,
1989.
Order Denying Review,January 4, 1990
Permittee:
539 Alaska Placer Miners, More or Less, and 415 Alaska Placer Miners, More or Less
(Docket Nos. 1085-06-14-402C and
1087-08-03-402C)
Background:
Trustees for Alaska, a public interest law firm, filed a petition asking the Administrator to
review the presiding administrative law judge's order dismissing the Trustees as a party to the
proceeding. The ALJ took this step, upon motion of another party, because the Trustees: (1)
failed to provide the permittees with required notice of its challenge to their 1987 permits and (2)
failed to give prior notice of their intention not to attend the evidentiary hearing. According to
the ALJ, the Trustees; failure to give prior notice of their absence from the hearing justified
dismissal because it represented a failure on their part to prosecute their challenge to the permits
and because if resulted in prejudice to the other parties.
Issue:
Does the Administrator have jurisdiction to review an ALJ's order dismissing a party challenging
the issuance of an NPDES permit.
Discussion:
No. 40 CFR 124.91 provides jurisdiction to the Administrator to review an ALJ's initial decision.
An initial decision in the evidentiary hearing process is a decision disposing of the underlying
controversy. The Administrative Procedure Act defines it as a decision which "decides the case."
5 USCA 557(b). In dismissing Trustees for Alaska, the ALJ ruled only on the status of the
Trustees' participation in the proceedings. The ALJ has not decided the case, therefore,
jurisdiction to hear a direct appeal of the dismissal order does not exist under 40 CFR 124.91.
An interlocutory appeal from orders and rulings of an ALJ can be entertained under
40 CFR 124.90, but first the ALJ should certify the ruling for interlocutory appeal. Failing this,
the ruling may be reviewed as part of review of the initial decision, or upon motion of the
appealing party to the Administrator. In the tatter procedure, the appealing party must establish
to the Administrators satisfaction that to delay review would not be in the public interest. In this
case, the dismissed party has met none of the requirements for the grant of an interlocutory
appeal.
Disposition:
Review of the ALTs dismissal of Trustees for Alaska denied.
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Non-NPDES Issues;
40CFR 124.91(c)(l);
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 21, 1983);
Appeal No. 86-11 (January 16, 1978)
NPDES Appeal No.: 89-15
Documents Available:
Order Denying Petition for Review, November 14, 1989.
Permittee:
Hillsborough County Valrico Wastewater Treatment Plant.
(Permit No. FL0040983)
Background:
Petitioner seeks review of denial of request for an evidentiary hearing concerning permittee's
spray irrigation system plan.
Disposition: Review of the denial of request for an evidentiary hearing is denied. Petitioner
failed to challenge any limitation or condition in the permit.
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NPDES Appeal No.: 89-16
Documents Available:
Correspondence requesting response to a petition appealing the denial of a request for a hearing
between Agency Chief Judicial Officer and Regional Counsel, September 8, 1989.
Correspondence regarding grant of a stay of appeal pending the outcome of settlement
negotiations between Agency Chief Judicial Officer and Regional Counsel, October 17, 1989.
Permittee:
Alyeska Pipeline Service Company
Disposition: Stay of appeal granted for duration of settlement negotiations.
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40 CFR 124.91(c)(l);
Appeal No. 78-7 (August 28, 1978);
Appeal No. 83-2 (July 2, 1983);
Appeal No. 86-4 (January 16, 1987)
NPDES Appeal No.: 89-17
Documents Available:
Order Denying Petition for Review, January 9, 1990.
Permittee:
Corporacion Azucarera de Puerto Rico
(Permit No. PR0021415)
Disposition: Review of the denial of the permittee's request for an evidentiary hearing is denied
for failure to demonstrate that review should be granted.
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Signature Requirements;
40 CFR 124.73(b);
40 CFR 122.22(b)
NPDES Appeal No.: 89-20
Documents Available:
Order Denying Motion to Dismiss, January 25, 1990.
Permittee:
Montana de Fibra, Inc.
(Permit No. NM0029718)
Background:
Region VI filed a motion to dismiss permittee's Petition for Review based on permittee's alleged
failure to comply with the signature requirements pursuant to 40 CFR 124.73(b) and 122.22(b).
Specifically, the name of the permittee's president was typed below the Petition's signature line,
while the document was signed by someone else for the president.
Igsjig:
Is failure to submit a written authorization designating a representative who may sign a petition
for Review in place of an authorized party to the EPA a grounds for dismissal of the petition
pursuant to 40 CFR 124.73(b) and 122.22(b)?
Discussion:
No. Section 122.22(b) expressly applies only to permit applications and reports. The Region
failed to show that the section also applies to Petitions for Review. Also, even if section
122.22(b) applies, the Region did not demonstrate that dismissal is the appropriate remedy.
Proper remedy would be a resubmission of petition with appropriate signature.
Disposition: The motion to dismiss was denied and the permittee's petition was to be resubmitted
to include signature of authorized party.
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DRAFT
SUMMARY OF APPEALS TO THE EPA ADMINISTRATOR,
FROM NPDES APPEAL NO. 75-1 TO APPEAL NO. 89-20
(DRAFT)
July 10, 1990
U.S. Environmental Protection Agency
Office of Water Enforcement and Permits
Washington, D.C. 20460
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