NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM
ADJUDICATORY HEARING PROCEEDINGS
DECISIONS OF THE
ADMINISTRATOR
AND
DECISIONS OF THE
GENERAL COUNSEL
VOLUME 1
SEPTEMBER 1974 DECEMBER 1975
M> v
*i PRO^°
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
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NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM
ADJUDICATORY HEARING PROCEEDINGS
DECISIONS OF THE
ADMINISTRATOR
AND
DECISIONS OF THE
GENERAL COUNSEL
VOLUME 1
SEPTEMBER 1974 - DECEMBER 1975
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INTRODUCTION
This volume brings together all the Decisions of the General
Counsel on Matters of Law and all the Decisions of the Administrator
issued through December 1975 by the United States Environmental Protection
Agency (EPA) in connection with National Pollutant Discharge Elimination
System (NPDES) adjudicatory hearing proceedings under section 402 of the
Federal Water Pollution Control Act, as amended, Public Law 92-500,
33 U.S.C. §1251 et seq. (the Act), and corresponding NPDES regulations,
40 CFR Part 125, as amended, July 24, 1974.
NPDES adjudicatory hearings are conducted by Administrative Law
Judges to consider material issues of fact relating to the question of
whether an NPDES permit should be issued, denied, or modified. Following
the hearing the Administrative Law Judge certifies the hearing" record,
together with proposed findings and conclusions prepared by the parties,
to the Regional Administrator for an initial decision.
Issues of law arising from a request for an adjudicatory hearing,
including questions relating to the interpretation of the Act and
regulations promulgated thereunder, are referred by the EPA Regional
Administrator or the Administrative Law Judge to EPA's General Counsel
for a decision. These decisions of the General Counsel are relied
upon by the Regional Administrator in reaching his initial decision.
The initial decision of the Regional Administrator becomes the
final decision of the Agency unless a party petitions the Administrator
for review of the initial decision or unless the Administrator reviews
the initial decision on his own motion. On review, the Administrator
may affirm, modify, set aside, or remand the initial decision for
further proceedings. A petition for review by the Administrator and a
decision on that petition are prerequisites for judicial review of the
Agency's action.
This collection contains all decisions of the Administrator,
including denials of petitions for review, and- decisions of the General
Counsel reached under these procedures through the end of 1975. Subsequent
decisions will be compiled in future volumes.
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TABLE OF CONTENTS
DECISIONS OF THE ADMINISTRATOR (in order of issuance)
1. Marathon Oil, et al (known as Consolidated 1
Offshore Cases). Cook Inlet, Alaska. Region X.
NPDES Appeal No. 75-1. Appeal from Initial
Decision of Regional Administrator, April 17,
1975. Decision of Administrator, September 25,
1975. Application for Stay of Permit Pending
Circuit Court Review of Decision of Administrator,
January 5, 1976. Denial of Application for Stay,
January 27, 1976.
2. Shell Oil and Atlantic Richfield (known as Shell 54
Offshore Case). Cook Inlet, Alaska. Region X.
NPDES Appeal No. 75-2. Appeal from Initial Decision
of Regional Administrator, April 24, 1975. Decision
of Administrator, September 25, 1975. Application for
Stay of Permit Pending Circuit Court Review of Decision
of Administrator, January 5, 1976. Denial of Application
for Stay, January 27, 1976.
3. Marathon Oil, et al (known as Consolidated Onshore 69
Cases). Cook Inlet, Alaska. Region X. NPDES
Appeal no. 75-3. Appeal from Initial Decision of
Regional Administrator, April 30, 1975. Decision
of Administrator, September 25, 1975.
4. New England Fish Company, Orca Cannery. Cordova, 103
Alaska. Region X. NPDES Appeal No. 75-8. Appeal
of Denial of Request for Adjudicatory Hearing,
September 2, 1975. Denial of Petition for Review,
September 29, 1975.
5. Bethlehem Steel Corporation. Bethlehem, Pennsylvania. 106
Region III. NPDES Appeal No, 75-9, Appeal
from Initial Decision of Regional Administrator,
September 3, 1975. Decision of Administrator,
September 30, 1975.
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Page
6. U.S. Pipe and Foundry Company. North Birmingham, 110
Alabama. Region IV. NPDES Appeal No. 75-4.
Appeal from Initial Decision of Administrative
Law Judge Yost, May 12, 1975. Decision of
Administrator, October 10, 1975. Modifications
to Decision of Administrator, December 9, 1975.
7. Dyecraftsmen, Inc. Taunton, Massachusetts. 130
Region I. NPDES Appeal No. 75-14. Petition
for Stay of Permit, October 15, 1975. Denial
of Request for Stay, December 3, 1975.
8. St. Regis' Paper Company. Buckport, Maine, and 136
International Paper Company, Jay, Maine. Region I.
NPDES Appeal No. 75-5. Appeal from Decision of
General Counsel, May 29, 1975. Decision of
Administrator, December 5, 1975.
9. Industrial Water Supply Company. Tuscola, 146
Illinois. Region V. NPDES Appeal No. 75-13.
Appeal of Denial of Request for Adjudicatory
Hearing, October 7, 1975. Denial of Petition
for Review, December 31, 1975.
DECISIONS OF THE GENERAL COUNSEL
1. Marathon Oil Company, Cook Inlet, Alaska. 151
2. United States Pipe and Foundry Company, 155
Birmingham, Alabama.
3. United States Steel Corporation, Crystal City, 167
Missouri.
4. St. Regis' Paper Company, Buckport, Maine, 177
International Paper Company, Jay, Maine.
5. Marathon Oil Company, Union Oil Company of 183
California, Atlantic Richfield Company, and
Mobil Oil Corporation, Cook Inlet, Alaska.
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Page
6. E. I. duPont de Nemours & Company, Washington 190
Works, Parkersburg, West Virginia.
7. Central Illinois Public Service Company 199
(CIPSC), Coffeen Lake, Illinois.
8. Jones s Laughlin Steel Corporation, Hennepin 203
Works Division, Hennepin, Illinois.
9. North American Coal Corporation, Seward, 205
Pennsylvania.
10. Western Kraft Corporation, New Orleans, 207
Louisiana.
11. Christopher Coal Company, Consolidation Coal 209
Company, Inc. #93 Jordan Mine, Hagans Shaft
Pump, Osage, West Virginia.
12. Greater Anchorage Borough, John M. Asplund 213
Facility, Anchorage, Alaska.
13. Commonwealth Edison Company, Sabrooke, Illinois 219
14. Indianapolis Power and Light Company, Petersburg, 224
Indiana.
15. Heinz, U.S.A., Muscatine, Iowa. 230
16. Illinois Power Company, Wood River Generating Station, 236
Decatur, Illinois.
17. United States Steel Corporation, Joliet Works, Joliet, 238
Illinois.
18. Bethlehem Steel Corporation, Burns Harbor Plant, 244
Indiana; and United States Steel Corporation,
Gary Works, Indiana.
19. Greenbriar Sewage Treatment Plant, Greenbriar, Maryland. 247
20. Marathon Oil Company, Atlantic Richfield Company 255
and Shell Oil Company, Cook Inlet, Alaska.
IV
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Page
21. Riverside Irrigation District, Ltd., Nampa S 257
Meridian Irrigation District; Boise Project Board
of Control; Drainage District No. 2; South Board
of Control; Farmers Cooperative Irrigation Company,
Ltd.; Farmers Union Ditch Company, Ltd.; Black
Canyon Irrigation District; A s B Irrigation District;
Aberdeen-Springfield Canal Company; Twin Falls Canal
Company; American Falls Reservoir District No. 2, and
Big Wood Canal Company; Minidoka Irrigation District;
Idaho Irrigation District; Farmers Friend Irrigation
Company, Ltd.; New Sweden Irrigation District,' Pioneer
Irrigation District,' all in Idaho.
22. United States Steel Corporation, South Works, Chicago, 275
Illinois.
23. United States Steel Corporation, Clairton Works; 305
Edgar Thomson-Irvin Works; Homestead Works;
National-Duquesne Works; all in Pennsylvania.
24. United States Steel Corporation, Christy Park Works, 321
Pennsylvania.
25. Wheeling-Pittsburgh Steel Corporation, Wheeling, 323
West Virginia.
26. Bethlehem Steel Corporation, Bethlehem, Pennsylvania. 327
27. Inland Steel Company, Indiana Harbor Works, Indiana. 332
28. Itmann Coal Company, Consolidation Coal Company, Itman 346
Mine #3, Wyoming County, West Virginia.
29. Peabody Coal Company, Universal Mine, Universal, 353
Indiana.
30. City of Ely, Nevada. 359
31. Sierra Pacific Power Company, Frank A. Tracy 371
Generating Station; Sierra Pacific Power Company,
Fort Churchill Generating Station,' both in Nevada.
32. Youngstown Sheet & Tube Company 375
Indiana Harbor Works, Indiana.
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33. Blue Plains Sewage Treatment Plant, Washington, 383
D.C.
34. Public Service Company of Indiana, Inc., (PSI) 401
Gallagher Generating Station, New Albany, Indiana.
35. City of Ketchum, Idaho. 407
36. St. Joe Minerals Corporation, Monaca, Pennsylvania. 414
VI
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DECISIONS
OF THE
ADMINISTRATOR
SEPTEMBER 1971 - DECEMBER 1975
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BEFORE THE ADMINISTRATOR
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
IN THE MATTERS OF:
National Pollutant Discharge
Elimination System
Permits For
Marathon Oil Company
(Marathon), Union Oil
Company (Union), Atlantic
Richfield Company (Atlantic
Richfield), Mobil Oil
Corporation (Mobil),
Permittees
NPDES Appeal No. 75-1
Consolidated No. X-74-17C
and Case Nos. X-74-2
X-74-3
X-74-4
X-74-6
X-74-9
DECISION OF THE ADMINISTRATOR
This is an appeal pursuant to 40 CFR 125. 36 (n) , £t seq. from
initial decisions of the Regional Administrator, Region X, dated
April 7, 1975 (X-74-2), April 8, 1975 (X-74-3, X-74-6, and X-74-9),
and May 13, 1975 (X-74-4) , in the above-styled consolidated proceeding.
This appeal concerns oil and grease effluent limitations and other
National Pollutant Discharge Elimination System (NPDES) permit terms
and conditions applicable to seven (7) offshore oil and gas production
platforms located in Cook Inlet, Alaska. The platforms are identified
as follows:
Marathon
Dolly Varden Platform
Union
Grayling Platform
Monopod Platform
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Atlantic Richfield
King Salmon Platform
Spark Platform
"A" Platform
Mobil
Granite Point Platform
During the period June 25, 1971, through January 2, 1972, the
individual permittees (sometimes referred to herein as the "petitioners")
applied to the U.S. Army Corps of Engineers for discharge permits
for point source discharges at each of the platforms, pursuant to
the then-existing Federal Refuse Act Permit Program. Fran April 9,
1973, through April 16, 1973, the permittees applied to the U.S.
Environmental Protection Agency (EPA) for NPDES discharge permits
pursuant to the Federal Water Pollution Control Act Amendments of
1972 (the Act). On September 28, 1973, the EPA Region X staff issued
tentative determinations (draft permits) for each of the seven platforms,
followed by an informal public hearing in Anchorage, Alaska, on
October 31, 1973. On December 21, 1973, the Regional Administrator,
Region X, issued final permits for each platform (hereafter referred
to as the "final permits"). In January, 1974, the permittees request-
ed adjudicatory hearings on certain terms and conditions of the
final permits. By order dated July 11, 1974, the Regional Administrator
consolidated the adjudicatory hearings and the consolidated hearing
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was held in Anchorage, Alaska, on August 12-16, 1974. The record
of the hearing was certified to the Regional Administrator by
Administrative Law Judge William J. Sweeney on December 9, 1974.
On the same date, seven issues of law were certified to the
Assistant Administrator for Enforcement and General Counsel. On
April 7, April 8, and May 13, 1975, the Regional Administrator
rendered the initial decisions noted above.
On April 16, 1975, the permittees filed a joint petition for
review by the Administrator of the initial decisions rendered on
April 7 and April 8, 1975. On May 20, 1975, the permittees filed
a petition for review by the Administrator of the "second initial
decision" rendered on May 13, 1975. On June 5, 1975, EPA's Chief
Judicial Officer issued a notice granting permittees' petitions
for review by the Administrator. Thereafter, the Chief Judicial
Officer, acting pursuant to a general delegation of authority from
the Administrator, conducted an informal briefing conference with all
the parties on July 10, 1975, received written briefs from the parties
on July 25, 1975, and heard final oral argument on August 7, 1975.
This decision is based on an extensive review of the record of this
proceeding conducted over a period of approximately six weeks.
This proceeding, together with decisions issued simultaneously
in two related proceedings involving two additional offshore platforms
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(Case No. X-74-5) and three onshore production facilities (Consolidated
No. X-74-18C) located in Cook Inlet, Alaska, is the first review
conducted by the Administrator under 40 CFR 125.36(n) et seq. It
is also, therefore, the first instance in which questions involving the
legal sufficiency of the procedures for NPDES adjudicatory hearings
have been raised. For these reasons, among others, this decision is
lengthier, more detailed, and more significant to the overall adminis-
tration of the NPDES permit program than otherwise might be the case.
Because of the multiple parties and complicated legal and technical
issues involved, it is hard to imagine a more difficult S«t of
circumstances to review. In an abundance of caution, therefore, I
am setting forth in this decision considerably more detailed findings
of fact and conclusions of law than otherwise might be necessary or
appropriate in less complicated proceedings.
On April 21, 1975, the Regional Administrator and attorneys
acting for the permittees entered into an "Agreement Settling
Certain Disputed Issues." The resolved issues include the effluent
limitations for domestic wastes, cutting waters and drill cuttings,
and drilling muds; the definition of the terms "daily average" and
"daily maximum;" the term of the permit; and the vrording of the
analytical quality control provision. I find no basis on the
record for reviewing any of the issues heretofore resolved by
stipulation of the parties.
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The parties also stipulated and agreed that the isrv.es v.tiich
remain for resolution are the following:
1. The effluent limitations to be applied to deck drains
and produced water.
2. The compliance schedules respecting the implementation of
effluent limitations for produced water, deck drains, and domestic
waste.
3. Whether an upset provision should be included in the permits
pertaining to produced water, deck drains, and sewage facilities and
discharges, and, if so, the form which an upset provision should take.
4. Whether a more liberal bypass provision should be included
in the permits pertaining to produced water, deck drains, and sewage
facilities and discharges, and, if so, the form which a more liberal
bypass provision should take.
In addition to the unresolved issues noted above, the petitioners
have raised a number of procedural and legal objections to the
proceedings below. These objections relate to the form and timing
of the Regional Administrator's initial decisions, the form and
timing of the disposition of issues of law certified to the Assistant
Administrator for Enforcement and General Counsel, and the legal
sufficiency of the NPDES adjudicatory hearing process under the
Administrative Procedure Act (APA) and the due process clause of the
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Constitution of the United States. I will address the procedural
and legal issues first.
I. PROCEDURAL AND LEGAL ISSUES
A. Form and Timing of Initial Decisions
The petitioners object to the following elements of the form
and timing of the initial decisions:
1. In a consolidated proceeding under 40 CFR 125.36(g), there
should be a single, uniform decision applicable to all parties and
facilities rather than separate, non-uniform decisions for "each of
the parties.
The EPA regulations provide, in section 125.36(g), that two or
more proceedings may be consolidated to expedite or simplify
consideration of the issues. Any party, however, may raise issues
that could have been raised if consolidation had not occurred. At
the conclusion of the adjudicatory hearing, the Administrator or
Regional Administrator must render "a separate decision for each
proceeding." The separate cases under consideration here were con-
solidated in July 1974, on the motion of EPA regional staff.
According to the permittees, it was clearly understood and
relied upon at the adjudicatory hearing by all the parties that
on common issues the evidence jointly provided by the permittees
would be uniformly applied in reviewing permit terms and provisions
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for all the platforms. EPA's lead counsel reputedly gave oral assurances
at the hearing that all the permits would be "uniform" when issued.
The permittees further contend that the provision of the afore-
mentioned stipulation which states that, "the Agency shall issue
a modified permit for a term of five years, as to those issues which
remain for resolution," was understood to mean that uniform permits
covering all the issues remaining for resolution would be issued
subsequent to the resolution of the disputed issues.
I do not find in the record any conclusive evidence that
uniform permits would be issued to all the parties in this consol-
idated proceeding. It does appear, however, from the manner in
which the adjudicatory hearing in this proceeding was conducted that the
permittees at least assumed that the evidence presented would be uniformly
applied to all the parties and that neither the Presiding Officer
nor the EPA staff challenged that implied assumption. Once the hear-
ing was concluded, however, the Regional Administrator apparently
felt bound by the requirement of section 125.36(g) to issue separate
decisions for each proceeding, in spite of a proposed finding of the
EPA regional staff attorneys to the contrary, which stated, in part:
I cannot logically reconcile this regulatory mandate
[for separate decisions] with the inherent character
of a consolidated proceeding except by declaring this
decision is independently applicable to each of the
four Permittees herein. In that respect, it is
separately rendered for each.
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I agree. The inherent character of consolidated proceedings,
together with the actual conduct of the parties prior to and during
the adjudicatory hearing in this proceeding, requires me to conclude that
the evidence submitted in this proceeding should be uniformly applicable to
all the permittees on common issues and, under the circumstances of this
case, that uniform permits should be issued for each of the facilities.
This decision on appeal — a single decision uniformly applicable to all
four permittees and all seven facilities — is in accord with this
conclusion, which is expressly limited to the peculiar circumstances of this
proceeding.
2. The initial decisions fail to set forth an adequate statement of
findings and conclusions including the reasons and basis therefor and
further fail to address all issues of fact and discretion submitted by the
permittees in their proposed findings and conclusions, as required by
40 CFR 125.36(1)(2).
Following the adjudicatory hearing, the permittees submitted 69
proposed findings of fact and 36 proposed conclusions of law. EPA regional
staff also submitted numerous proposed findings and conclusions. The
separate decisions issued by the Regional Administrator each include several
pages of discussion of facts and issues and a one-page "Statement of
Findings and Conclusions," consisting of some 6 or 7 items in each case.
While I am sympathetic to the difficulty of reviewing a highly complex
record and responding, in detail, to all the proposed findings which may
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be submitted by a party in a case of this type, I must conclude that
the initial decisions do not comply fully with the intent of the
regulations. There is considerable merit in the argument made by
the EPA regional attorneys that the initial decisions need only contain
the "ultimate facts" in issue, and need not address each and every
finding proposed by a party. The petitioners contend, however, that a
failure to set forth detailed findings and conclusions and the reasons
and basis therefor is more than a matter of style and form. Such
shortcomings may adversely affect the ability of the parties and
reviewing tribunals to perceive adequately the essential facts on which
a decision is based. I do not believe that to be the case in this
proceeding. Despite the brevity of the statements in the initial
decisions, there is sufficient detail and explanation to perceive
adequately the essential facts on which the decisions are based. Such
infirmities in style and form as do exist are not sufficient to require
that the initial decisions be vacated. Considering the extensive review
of the record made in reaching this final decision, it is appropriate to
set forth herein any additional findings and conclusions needed to adequately
apprise the parties and any reviewing court of the reasons and basis
for the Agency's final decision.
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3. The initial decisions were not issued within 20 days follow-
ing certification of the record as required by 40 CFR 125.36(1)(1).
There is no question that the initial decisions were not issued within
the 20 days following certification of the record by the Presiding
Officer on December 9, 1974. Petitioners point out that the first
initial decision was issued on April 7, 1975, some 119 days from the
date of certification. Reference is made in post-appeal briefs sub-
mitted by the parties to the fact that since seven issues of law
certified to the Assistant Administrator for Enforcement and General
Counsel were not answered until April 4, 1975, it might be argued that
the initial decisions were not required until 20 days following that
date. That argument, however, begs the question of whether the
response to the certified issues of law itself was timely given,
since the reference to the General Counsel for resolution also was
made on December 9, 1974. I can only presume that one reason for
the delay in issuing the initial decisions must have been the
continuation of settlement negotiations following the adjudicatory
hearing. Counsel for the permittees, especially Marathon, have
indicated that between December, 1974, and April, 1975, they made
several requests to the Regional Administrator to issue the initial
decisions, and finally threatened a mandamus action. It is apparent
that the delay was not due simply to inaction on the part of the
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regional office. While I do not condone excessive and unexplainab1 e
drday in rendering any Agency decision, particularly where regulations
provide a specific timetable, I Relieve the record and issues involved
in this proceeding have been exceptionally difficult and time-consuming
to review and resolve. Most important, it has not been shown that the
permittees were in any way adversely affected by the delay. In fact,
the permittees have been able to continue to operate without installing
any additional controls at issue in this proceeding pending the
outcome of this protracted proceeding. I find no merit in the
petitioners' argument that because of this delay the Regional Administrator
was ousted from jurisdiction to render the initial decisions and that
petitioners' applications and proposed permits must be presumed to
have been granted.
4. Issues of law certified to the General Counsel were not
decided prior to issuance of the initial decisions and could not therefore
have been relied upon by the Regional Administrator as required by 40
CFR 125.36 (m)(4).
This objection is largely academic (with one exception) since, as the
petitioners point out in their argument on the specific issues, the
General Counsel found that 6 of the 7 issues were not appropriate for
decision at this time because of their Federal constitutional nature.
The remaining issue — relating to the finality of rulings of the
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Presiding Officer on the admissibility of evidence and other
procedural matters under 40 CFR 125.36 (i) (6) — has only hypothetical
application to this proceeding since the Regional Administrator has
not, in fact, substituted his judgment on procedural rulings for that
of the Presiding Officer. Therefore, I find no basis for concluding
that the Regional Administrator acted contrary to the requirement
of 40 CFR 125.36 (m) (4). It should be pointed out that, in fact,
the General Counsel's decision on the certified issues of law was
rendered on April 4, 1975, three days prior to the issuance of the
first initial decision. I can only conclude that, considering both
the nature of the issues certified to the General Counsel and the
form of the General Counsel's response, the Regional Administrator
in each instance correctly presumed the validity of the Agency's
regulations. I find no fault with that presumption as a basis for
issuing the initial decisions and, indeed, would be surprised had
he determined otherwise.
5. The Regional Administrator had no jurisdiction to issue the
"second initial decision" for the Union "Monopod" platform because
the decision labeled X-74-3 was the decision for both the Union "Grayling"
and "Monopod" platforms.
Although the record on this matter is confusing, it appears that
the Regional Administrator issued a separate decision labeled X-74-4
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for the Union "Monopod" platform on May 13, 1975, because Union had
filed separate requests for hearings on each of its two platforms.
It is apparent, however, that on April 8, 1974, the Regional Administrator
consolidated the two union requests "for all purposes." I can find on
the record no logical basis for the issuance of a separate decision
on the Union "Monopod" platform, and must conclude that the Regional
Administrator erred in the issuance of the "second initial decision"
for the reasons stated above.
B. Issues of Law
The issues of law certified to the Assistant Administrator
for Enforcement and General Counsel by the Presiding Officer on
December 9, 1974, include the APA and constitutional due process
issues raised in the petitions for review, and therefore they are
addressed together herein.
Before addressing the particular issues raised, I should state
unequivocally that I believe the NPDES permit regulations, as written
and as applied to the permittees in this proceeding, meet all the
applicable requirements of the APA and the fifth amendment to the
U.S. Constitution. The constitutionality of the NPDES regulations
was fully considered at the time the regulations were promulgated.
I should also state clearly at the outset that I do not believe
it is necessary or appropriate for me, in this permit review
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proceeding, to address in detail the specific constitutional
issues which have been raised. These arguments, in all liklihood,
would be heard de novo by a Court of Appeals reviewing this
decision. To attempt to answer each specific question in this
decision (and thus in every other permit review proceeding in which
these or other constitutional questions are raised) would place an
unacceptable burden on the adjudicatory hearing process. I should
note, in addition, that constitutional questions similar to those posed
in this proceeding are currently before the Seventh Circuit Court of Appeals
in another permit proceeding and in the District Court for the
Northern District of Illinois in an APA challenge to the NPDES regu-
lations. Therefore, it is evident that the proper avenues for review
of these constitutional issues exist and are being adequately utilized.
Nonetheless, I feel compelled to set forth briefly for the record of
this proceeding my general understanding of the nature of the NPDES
adjudicatory hearing process within the context of the APA and federal
constitutional law relating to administrative hearings for whatever
benefit it may have in this and future proceedings. I would be remiss
not to address these matters generally and attempt to resolve some
elements of the confusion and controversy which have existed in this
proceeding (and the related Cook Inlet proceeding designated X-74-18C)
regarding the nature of the NPDES adjudicatory hearing process.
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Fundamentally, the process of determining terms and conditions
for NPDES permits is an information-gathering and fact-finding process.
The process begins with the submission of information and data by
the applicant. Thereafter, the applicant and the public are provided
several opportunities to participate in the administrative process
and thereby protect their interests. EPA regulations require that
public notice be given of the proposed issuance of each permit,
setting forth EPA's tentative determinations. Interested persons
may submit written comments concerning the Agency's tentative
determinations and may request a public hearing. The written
comments must be considered by the Agency in making its final
determinations. If it is determined that a significant degree
of public interest regarding a proposed permit exists or that a
public hearing would provide useful information, the Agency may
hold a public hearing after due notice. At the hearing, any person
may submit oral or written statements and the information provided
must be considered by the Agency in making its final determinations.
If the Agency's subsequent determinations are substantially changed
from earlier tentative determinations, EPA must give public notice
of any such changed determinations.
After a final determination is made by the Agency (i.e., a final
permit is tendered to the applicant), any interested person may submit
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a request for an "adjudicatory hearing." Such hearings are not
required by the Act, but pursuant to EPA regulations will be granted
if the applicant has met certain requirements in its request and if
EPA determines that the request "sets forth material issues of fact
relevant to the questions of whether a permit should be issued,
denied, or modified." Following an adjudicatory hearing, the EPA
Regional Administrator or his designee renders an initial or recom-
mended decision on the issues presented at the adjudicatory hearing.
If the applicant is still dissatisfied with the terms and conditions
of the final permit, he may request review by the Administrator.
At each stage of the foregoing process, EPA is required to
make technical judgments concerning the degree of effluent control
required to comply with the provisions of the Act. In those cases
where the Act's technology-based standard for 1977 applies — i.e.,
"best practicable control technology currently available" — the
Agency either adheres to formally established "effluent guidelines"
for the particular industry or, where such guidelines have not yet
been established, relies upon the "professional judgment" of the
Agency's staff in setting permit Imitations and conditions. In
the latter case (which is the case in this proceeding) , the exercise
of professional technical judgment inherently involves some case-
by-case "legislative" or policy determinations, as well as specific
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"judicial" or factual determinations. Thus, particularly in the
case of pre-guideline permits, it is difficult to separate legislative
from judicial facts and determinations in the NPDES permit issuance
process.
It is important to note also that the determinations being made
in the issuance of NPDES permits relate to future conduct, as dis-
tinguished from factual determinations regarding past events. While
past performance is pertinent in determining the level of control
needed to meet the requirements of the Act, the thrust of NPDES permits
is to determine what steps an applicant must take to control future
effluent discharges. These considerations are relevant and important
to an understanding of how the NPDES adjudicatory hearing process
relates to the requirements of the APA and constitutional due process.
With this background, the following questions emerge:
Does the Act require a trial-type APA adjudication in NPDES
permit hearings, with all the attendant procedural safeguards of the
APA? If not, is the NPDES adjudicatory hearing process nonetheless
infirm because it does not provide sufficient procedural safeguards
in keeping with due process requirements of the U.S. Constitution?
NPDES aljudicatory hearings are "adjudications," as defined
by the APA, since it is inescapable that Agency process for the
formulation of an Agency permit is an "adjudication." Significantly,
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however, the sections of the APA applicable to Agency adjudications
apply "in every case of adjudication required by statute to be deter-
mined on the record after opportunity for an Agency hearing . . .
(emphasis supplied)." Section 5 of the APA (5 U.S.C. Sec. 554) has
been interpreted to mean that Sections 7 and 8 of the APA (5 U.S.C. Sees.
556 and 557) must be applied only where the Agency statute, in addition
to providing a hearing, prescribes explicitly that it be "on the record."
Section 402 of the Act only requires "opportunity for public hearing"
before the issuance of an NPDES permit. I am aware that some courts
have found that despite the absence of statutory language directing
a hearing "on the record," some Agency hearings may nonetheless fall
within the ambit of the APA.
I am also aware of a 1973 opinion of the Department of Justice1
Office of Legal Counsel to this Agency, addressing the question of whether
administrative law judges would be required to preside at NPDES
adjudicatory hearings, which states:
In the absence of unequivocal history indicating
a contrary result, history not here present, we
do not believe that the omission of the phrase
"on the record" from section 402 may be said to
reflect any deliberate Congressional intention.!/
This opinion concluded that since administrative' decisions in NPDES cases
are subject to judicial review in the courts of appeal and the rules of
appellate practice require the submission of the agency record for review,
the administrative decision must be "on the record" and, accordingly,
y
Memorandum Opinion dated June 5, 1973, from Robert G. Dixon, Jr.,
Assistant Attorney General, Office of Legal Counsel, U.S. Department of
Justice, to Alan G. Kirk II, General Counsel, EPA, and Anthony L«
Mondello, General Counsel, Civil Service Comnission.
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administrative trial judges would be required. One year
after the above opinion was rendered, however, the NPDES regulations
were amended in several irrportant respects, and the matter again
has been submitted to the Justice Department for a legal opinion.
Unfortunately, that opinion is not yet available to me for additional
guidance. My impression, however, is that even if the Department of
Justice should again opine that administrative law judges are required
to preside at NPDES permit hearings, that still would not resolve the
issue of whether NPDES permit hearings are subject to the full range
of procedural requirements applicable to "adjudications" under the APA.
At the very most, it seems to me, adjudicatory hearings on initial NPDES
permits might be considered "initial licensing" proceedings under the APA.
As such, they would be exempt fron certain requirements of the APA, such as
the rendering of a reoonmended decision by an administrative law judge.
On the basis of the foregoing, which is not intended to be an
exhaustive analysis of the issues and administrative law involved,
I can only conclude that the petitioners have not presented a con-
vincing argument that the APA is fully applicable to NPDES permit
hearings.
Even apart fron the specific questions of APA applicability,
the petitioners have failed to demonstrate that the procedures
19
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employed in this proceeding were fundamentally lacking in fairness.
The permittees argue that due process principles under the U.S.
Constitution require trial-type adjudicatory hearings on the terms
and conditions of NPDES permits and that such hearings be "on the
record." While I agree that NPDES permit applicants must be afforded
constitutional due process, I do not believe that the Agency's
regulations or the procedures employed in this proceeding have
denied the permittees a fair hearing in keeping with constitutional
due process requirements.
The due process clause does not require a full adjudicatory
hearing in every case of government restraint of a private interest.
The Supreme Court has stated that:
. . . consideration of what procedures due
process may require under any given set of
circumstances must begin with a determination
of the precise nature of the government function
involved as well as of the private interest that
has been affected by governmental action.2/
I believe the NPDES regulations fully reflect the "precise nature
of the government function involved," as well as the private interests
affected, in setting forth the panoply of administrative procedures
for determining the terms and conditions of NPDES permits. Both
2/ Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v.
McElroy, 367 U.S. 886, 894-95 (1960).
20
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the applicant and the public are afforded anple opportunities to
challenge the tentative determinations of the Agency, to express
their views in informal public hearings, and, in a more formed
setting, to present their own evidence, data, and information,
as well as rebut information presented by the Agency. To apply
the additional strictures which petitioners urge would greatly
reduce the flexibility needed to consider and evaluate the technical
information and data which is inherent in the NPDES permit process,
without materially adding to the elements of a fair hearing already
provided.
Without addressing each point separately made by the petitioners
it should suffice to state that the due process objections raised —
including conmingling of functions in the Regional Administrator,
consideration of matters outside the record of the hearing, lack
of discovery and subpoena power, and evidentiary rulings by the
Presiding Officer — are not supported by sufficient showings
that the petitioners in fact were deprived of opportunities to
furnish their own conments and testimony, rebut information and
evidence presented by the Agency, obtain additional information
in the possession of the Agency/ and, by all these means,
participate fully in the administrative process to protect their
interests.
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For these reasons, which I do not intend to be a complete
analysis of the issues and constitutional law involved, I an
convinced that the petitioners have not been denied due process
under the Constitution.
II. FINDINGS
A. Facilities Involved
The record includes considerable information describing the
offshore oil and gas production platforms involved in this proceeding.
The following findings proposed by the permittees in a docxment
accompanying their written brief submitted on July 25, 1975,
are, with certain exceptions indicated, adopted for purposes of
this decision:
1. Cook Inlet is a navigable body of water located near Anchorage,
Alaska, lying generally in a northeast-southwest direction bordering
Anchorage on the northeast and opening into the North Pacific Ocean
on the southwest.
2. Petitioners operate offshore oil and gas production platforms
in Cook Inlet as follows:
a. Marathon operates the Dolly Varden oil production platform
which is approximately eight miles from the mouth of the McArthur River
(lat. 60° 48' 28.286"-long. 151° 37' 57.667"). The platform produces
about 45,000 barrels per day of crude oil and 12,800 million cubic
22
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feet per day of natural gas. The Dolly Varden has a gravity separator
which treats deck drain water. Currently, produced water is pumped
to shore through a submarine pipeline for treatment. Domestic waste,
drilling muds, cuttings, cuttings wash water and treated deck drain water
are discharged into Cook Inlet.
b. Mobil operates the Mobil-Union Granite Point Platform located
approximately four miles southeast of Granite Point in Upper Cook
Inlet (lat. 60° 57' 30"-long. 151° 19' 53"). Fran this platform,
Mobil produces approximately 6,500 barrels of crude oil per day. All
discharges are to Cook Inlet near Granite Point. The platform has
a dissolved air-flotation cell currently treating deck drain waste
water and capable of treating formation water when produced and, a
physical-chemical sewage treatment plant for treatment of domestic
waste.
c. Atlantic Richfield operates three platforms:
(1) Platform Spark is located about seven miles from
shore in Trading Bay (lat. 60° 55' 42"-long. 151° 31' 50"). Production
of crude oil from Spark is approximately 3,600 barrels per day.
(2) Platform A is located approximately seven miles east
of the mouth of the McArthur River (lat. 60° 55' 10"-long. 151° 33'
26"). Production of crude oil from A is approximately 3,764 barrels
per day.
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(3) Platform King Salmon is located approximately five miles
southeast of the mouth of the McArthur River (lat. 60° 15' 55"-long.
151° 36' 02"). Production from King is approximately 30,000 barrels
of crude oil per day and 9MCF of gas per day.
Produced water and deck drain waste water from all three
Atlantic Richfield-operated platforms are currently pumped to shore
through submarine pipelines for treatment. All other discharges are
made directly to Cook Inlet.
d. Union operates two platforms:
(1) The Monopod Platform is located approximately 3.5
miles from shore near the West Foreland (lat. 60° 57' 48"-long. 151°
34" 45.5"). The platform produces approximately 21,700 barrels of
crude oil per day and 35,700 million cubic feet of natural gas per
day. Deck drain oil-water separation equipment is a gravity
separator. Domestic waste treating equipment "is not presently on
the platform. Currently, produced water and deck drain waste water
are pumped to shore for treatment through a submarine pipeline. All
other discharges are made directly to Cook Inlet.
(2) The Grayling Platform is approximately 6 miles east of
the West Foreland (lat. 60° 50' 23"-long. 151° 36' 47"). The
platform produces 46,100 barrels of crude oil per day and 27,000
million cubic feet of natural gas per day. Deck drain oil-water
24
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separation equipment is a gravity separator. Domestic waste
treating equipment is not presently on the platform. Currently,
produced water and deck drain waste water are pumped to shore for
treatment through a submarine pipeline. All other discharges are
made directly to Cook Inlet.
3. Each of the platforms is located in an area where Cook
Inlet is approximately 25 miles wide. None is more than 10 miles
from shore.
4. The platforms are fabricated steel structures permanent-
ly secured to the Inlet floor with steel pilings and are located
in waters varying in depths from 60 to 160 feet at mean low tide.
Each platform is constructed to withstand the extreme conditions
of Cook Inlet water, including the low winter temperatures of -20°F
to -30°F, the abrasive nature of the silt entrained in the water,
the range of tides with resulting currents up to 8 knots, and
large ice floes 5 to 6 feet in thickness and approximately forty
acres in size. Due to the fact that Cook Inlet is located in an
active earthquake region, additional structural integrity is re-
quired. The legs of the platforms are designed to accommodate
the well casings inside them so that ice floe conditions do not
result in collapse of the well casings.
25
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Although these platforms are different in configuration, each
is specifically designed for the purpose of extracting oil and gas
from subsurface geologic formations. Platform activities include
drilling, completing, reworking and producing oil and gas walls.
The platforms have multiple solid steel decks providing a finite
amount of space for equipment and material. As constructed, the
platforms have little space available for additional equipment.
All but the top decks are enclosed to protect personnel and
equipment from the extreme low winter temperatures. Typically,
the solid steel decks with drains allow spilled materials to be
washed into a deck drain treating system rather than being flushed
into Cook Inlet without treatment.
During the life of most oil and gas producing operations,
water is produced along with oil and gas from the geologic
formations. On some platforms, the produced water is separated
fron the oil and gas, treated in a gravity separator, flotation
cell or ooalescer and then discharged into Cook Inlet. On the
other platforms, the oil, gas and water are shipped to onshore
treating facilities through submarine pipelines that vary in
size from four to ten inches in diameter. Lying on the floor of
the Inlet, these pipelines are 4 to 9 miles in length.
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-27-
Platforms in Cook Inlet are entirely self-contained,
providing food and lodging for the fluctuating population of
operating personnel required to maintain year round production
from the platforms.
Since the platforms are permanently secured to the Inlet
floor, they are totally dependent on either helicopters or boats
for transporting solid wastes, personnel and supplies to and
from shore. During periods of severe weather and ice conditions,
the platforms are sometimes completely inaccessible.
5. Five major categories of pollutants result from operation
of the platforms:
a. The fluid stream produced from the geological formation
is an emulsion primarily made up of produced water, crude oil
and natural gas. The produced water phase is separated for further
treatment and contains various dissolved salts, dissolved gases
such as carbon dioxide, suspended solids, and natural surface
active agents. [Sentence intentionally omitted.]
b. Deck drain wastes which consist of the materials entering
the deck drain waste system. The influent to the deck drain
27
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-28-
systems includes melted snow, rain water, oil and grease from
platform decks, washdown water, cleaning agents, drilling mud
spillage (dry and wet) and glacial and volcanic dust;
c. Domestic wastes which include fresh water, salt water,
and human, kitchen, shower and laundry waste;
d. Water-based drilling muds;
e. Cuttings and cuttings water which consist of pieces of
the formation brought to the surface during the drilling process and
the sea water used to wash them.
B. Effluent Limitations — Deck Drains
The following findings and discussion pertinent thereto relate
to the establishment of oil and grease effluent limitations for
deck drain discharges from the platforms. Only those findings
necessary to resolve points in controversy in the record are
included.
6. The Brown and Root study (Exhibit 2), which uses a
substantial data base, including produced water and combined
produced water and deck drainage, for determining Best Practicable
Control Technology Currently Available (hereafter referred to as
"BPT") in the oil and gas extraction industry, concludes that
exemplary flotation systems are representative of BPT and provide
a reasonable basis for establishing numerical effluent guidelines
and limitations.
28
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-29-
7. Only three flotation systems currently treating deck
drainage frcm platforms in Cook Inlet present sufficient data for
analysis in establishing deck drainage effluent limitations.
8. The only deck drainage data presented in this proceeding
representative of BPT systems are those from the Mobil "Granite
Point" platform, and only nine (9) of these data points are not
contaminated by cooling water. The only other Cook Inlet platforms
presenting data representative of BPT systems are the Shell "A"
and "C" platforms, which are the subject of the related Cook Inlet
offshore permit proceeding designated X-74-5. These Shell data,
although not a part of this proceeding, must be considered in
determining BPT deck drainage effluent limitations for Cook
Inlet platforms.
9. Oil and grease data from other Cook Inlet platforms
are not representative of BPT systems or are of questionable
reliability because the samples were taken sporadically or were
not properly preserved.
10. The effluent limitations for deck drainage set forth
herein take into account the factors set forth in Section 304(b)(1)(B)
of the Act to the maximum extent possible, recognizing that only
three wastewater treatment facilities in Cook Inlet are repre-
sentative of BPT and that only limited data are available.
29
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-30-
11. Mr. Sebesta's analysis of deck drainage oil and grease
effluents in Cook Inlet, which includes all available data without
regard to type of treatment, concludes that based on a normal theory
of distribution, the effluent limitations of 85 mg/1 daily average
and 140 mg/1 daily maximum (hereafter such limitations are sometimes
referred to as "85/140, "25/75," etc.) are attainable by the
application of BET.
12. A statistical analysis of the data representative of
BPT systems from the three Cook Inlet platforms treating deck
I/
drainage indicates that the data are lognormally distributed and that
the following oil and grease effluent limitations for deck drainage are
I/
attainable: 65 mg/1 monthly maximum ("daily average") and 90 mg/1 daily
V
maximum.
13. Although the methodology for analyzing the combined deck
drainage data is consistent with that for produced water, in the case
of deck drainage a "pounds per day" limitation also has been determined.
A pounds per day limitation reflects the variability in deck flow and oil
mix, and therefore is a preferred limitation for deck drainage.
3/ Aitchison, J., and Brown, J.A.C., "The Lognormal Distribution," (1969),
Cambridge University Press.
4/ Analysis of the Shell data shows that the data follow a lognormal
distribution with log mean = .98 and log standard deviation = .56. The
97.5% attainable limits for Shell are 83 mg/1 monthly maximum and 116
mg/1 daily maximum, while the "Granite Point" data shows values of 46/64.
The Shell data used in this analysis was that used by Dr. Cook. The Mobil
data has been corrected for cooling water which occurred in 17 of the 26
data points.
5/ These limitations are based on four composite samples per month, where
each composite sample is the result of four grab samples on a given day.
The terms "monthly maximum" and "daily maximum" are defined, with respect
to the foregoing sampling scheme, as follows: (1) "monthly maximum" is the
value the monthly average shall not exceed, a™ ^ "daily^inaximunr is the
value the daily composite sample shall not
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-31-
The following pounds per day oil and grease effluent limitations
for deck drainage are attainable: 5 Ibs/day monthly maximum
("daily average") and 9.25 Ibs/daily maximum.
In making the foregoing findings, I am aware of the information
and data relied upon by the Regional Administrator in rendering the
initial decisions. Particularly in the Marathon and Union decisions
(X-74-2 and X-74-3) , he correctly cited and gave weight to permit
application data and data included in letters submitted by Marathon,
Mobil, and Union in late 1973, indicating that deck drain oil and
grease concentrations below 25 mg/1 were being achieved in a considerable
number of samples at that time. But he apparently did not give any
weight to other information and data available in the record. I believe
he should have considered, as well, the Brown and Root report and all the
data from comparable systems in Cook Inlet, in establishing deck drain
effluent limitations attainable through the application of HPT.
C. Effluent Limitations — Produced Water
The following findings and discussion pertinent thereto
relate to the establishment of effluent limitations for produced
water discharges from the platforms. Only those findings necessary
to resolve points in controversy in the record are included.
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14. The Brown and Root study (Exhibit 2) for determining HPT
in the oil and gas extraction industry concludes that the performance
of exemplary flotation systems is representative of BPT and, therefore,
such systems provide a reasonable basis for establishing numercial
effluent guidelines and limitations.
15. The treatability of produced water varies from location
to location and even at a single location over time. Variations
in effluent concentrations may result from differences in produced
water characteristics which vary from strata to strata, from
reservoir to reservoir, from oil field to oil field. Nonetheless,
there is a correlation between the treatability of produced water
being treated in Cook Inlet and in the Gulf of Mexico.
16. The producing characteristics of wells cause rate of
flow changes which, in turn, cause intermittent fluctuations in
influent volume to produced water treatment facilities, thereby
affecting effluent concentrations.
17. Flotation systems are very versatile and produce high
quality effluent in the majority of cases. Data used in the
Brown and Root performance analysis for flotation units was obtained
from a wide variety of sources.
18. The data base for the Brown and Root report was
provided by the Offshore Operators Committee (hereafter referred
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to as "OOC data"). OOC data includes effluent concentrations from
a broad cross-section of production facilities during all periods
of production and operation of offshore and onshore facilities,
with wide variations in produced water flow rates. Effluent limi-
tations based on OOC data, therefore, reflect variations in produced
water due to different formations and normal operation of production
facilities.
19. The Brown and Root report makes no reference to the
inclusion of "upsets" or "bypassing" in the definition of HPT.
The OOC data base includes data obtained during periods of upset,
drilling, workover, and other recurring operations associated with
oil and gas production. The performance of exenplary flotation systems
considered representative of BPT for treating produced water (as well
as deck drainage), therefore, takes into account changes in influent,
upsets, initial start-up, and other activities associated with the
normal operation of oil and gas production facilities. The Brown
and Root report does not distinguish between facilities treating
large volumes of wastewater and smaller facilities, facilities
treating different types of oil, and differing platform operations.
20. The Brown and Root report does not take in consideration
sample collection methods, frequency of sampling, and analysis
procedures, and did not use all the OOC data.
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21. The Brown and Root report recommends that the average
oil and grease concentration which should be maintained to be
consistent with BPT is less than the highest average effluent
concentration observed for any single flotation unit.
22. The OOC data base is composed of data collected both by
grab and composite samples. For purposes of statistical analysis,
grab sample data should be transformed to make it more representative
of composite sample data since the NPDES permits are based on composite
sampling.
i/
23. The OOC data conform to a three parameter lognormal
G/ This data base consists of Brown and Root flotation units ("BRFL")
1 through 41, with the exclusion of the following units for insufficient
data.
BRFL Unit # # of Data Points
18 3
19 3
20 3
21 3
22 2
31 5
35 0
36 2
40 1
41 1
Also excluded from the data base were the following points,
for the reasons noted. Where "outlier" is noted, this is with
regard to a statistical test based on the studentized maximum.
(See Sarhan, A.E. and Greenberg, B.C. (eds.), "Contributions to
Order Statistics," (1962), John Wiley, New York.)
BRFL Unit # # Points Reason
7 3 Outlier
8 1 Outlier
10 2 Outlier
11 5 Startup
27 4 Outlier
28 1 Outlier
38 15 Startup
4 Heater-treater nalfunction
34
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-35-
y
distribution. (The data base was tested for lognonrality by
i/
using a goodness of fit test.)
V
24. A statistical analysis of data representative of BPT
systems for treating produced water indicates that the following
oil and grease effluent limitations for produced water, using
composite sampling, are attainable: 48 mg/1 monthly maximum ("daily
10/
average") and 72 mg/1 daily maximum.
7/Aitchison, J., and Brown, J.A.C., "The Lognormal Distribution,"
T1969) Cambridge University Press.
8/ Anderson, T.W., and Darling, D.A., "A Text of Goodness of Fit,"
American Statistical Association Journal, 49 (1954), pp. 765-769.
9/ The parameters of the lognormal distribution for the daily data
are: T = 10, log mean =1.54 and log standard deviation - .157.
Thus the 99% confidence limit about the mean was Max (daily) = 10
1.54+2.33X1.37 -10. The monthly maximum was attained by simulating
possible concentrations from the above distribution, averaging four
value and applying the confidence limit methodology above.
10/ These limitations are based on four composite samples per month,
wEere each composite sample is the result of four grab samples on a
given day. The terms "monthly maximum" and "daily maximum" are
defined, with respect to the foregoing sampling scheme, as follows
(1) "monthly maximum" is the value the monthly average shall not
exceed, and (2) "daily maximum" is the value the daily composite
sample shall not exceed.
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The record in this proceeding concerning effluent limitations
for produced water discharges is extremely thin and confusing. But
for the fact that this proceeding already has consumed an inordinate
amount of time (some 20 months since the final permits were tendered
to the permittees in December, 1973), I might be inclined to remand
these proceedings on the issue of produced water limitations for
further consideration at the regional level. On balance, however,
I believe the findings set forth above are supported by the record
and provide a sufficient basis for the conclusions contained in this
final decision. A further delay in this proceeding is not warranted.
The Regional Administrator decided not to specify effluent
limitations for produced water discharges for two principal reasons:
the actual plans of the permittees to discharge produced water off-
shore were unclear and the record did not contain adequate information
upon which to base a decision. He concluded, therefore, that either
+
the matter should be handled outside these proceedings in seme
unspecified manner or that the permittees could file applications
(presumably amendments to the original applications) for the dis-
charge of produced water offshore. I think the facts surrounding
this proceeding warrant a different conclusion.
The original applications of the permittees may or may not have
specifically requested effluent limitations for offshore discharges of
36
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-37-
produced water. In some instances, it appears that such discharges
were contartplated from the outset. In others, the desire for permits
applicable to such discharges appears to have emerged at later stages
in this proceeding. It does not appear, however, that prior to the
rendering of the initial decisions the regional office never explicitly
rejected whatever contemplations or assumptions may have existed
prior to that time. In fact, the total course of conduct of the
regional office up to the rendering of the initial decisions seems
to have suggested the contrary.
In addition, under the circumstances here presented, I find no
inherent difference between the discharge of produced water offshore
and onshore, in terms of the effluent limitations for oil and grease
in produced water discharges. If the entire production operation,
including the platforms and the linked onshore facilities, are
considered integral parts of one system, then it would appear un-
necessary to distinguish an offshore discharge point from an onshore
discharge point for the purpose of establishing oil and grease
limitations in Cook Inlet. Therefore, even if the course of conduct
noted above were not present, I might still be inclined to suggest
that an offshore produced water limitation be established. Since
it is apparent on the record that the permittees in fact do plan
to discharge produced water offshore at some time in the future
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because pumping capacity to shore will be exceeded, the capacity
of the submarine pipelines will be exceeded, or free water will
be produced and may cause freezing problems in the submarine pipe-
lines during winter months, I find no reasonable basis for failing
now to specify produced water limitations for offshore discharges
if and when they do occur. To conclude otherwise, when a basis now
exists for reaching these determinations, would add needlessly
to the already protracted nature of this proceeding and further
delay a comprehensive control program for the entire production
system.
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D. Upset Provision
The following findings and discussion pertinent thereto relate to
the issue of whether an upset provision should be included in the permits
pertaining to produced water, deck drains, and sewage facilities and
discharges, and, if so, the form which an upset provision should take.
Only those findings necessary to resolve points in controversy in the
record are included.
26. The Brown and Root report (Exhibit 2) makes no reference to the
inclusion of "upsets" in the definition of BPT. The OOC data base
includes data obtained during periods of upset, drilling, workover, and
other recurring operations associated with oil and gas production. The
performance of exemplary flotation systems considered representative of
BPT for treating produced water and deck drainage, therefore, takes into
account changes in influent, upsets, and other activities associated
with the normal operation of oil and gas production facilities.
27. All new waste treatment systems must be started and their
operations stabilized. During periods of "start-up" and "stabilization"
new treatment systems may operate at less than optimum efficiency. Start-
up and stabilization of new waste treatment systems have been taken into
account in the existing compliance schedule provision. Since most of the
equipment items needed to meet BPT requirements are "off-the-shelf" items
with which the oil and gas industry has had considerable experience, a 60-
day stabilization period following completon of construction is
reasonable and has been provided in the permit compliance schedules.
39
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The terms and conditions of the permits may have the effeet of
inhibiting the installation of new, improved technology because of
start-up and stabilization problems. If necessary, the NPDES regulations
provide for the amendment of permits to allow for improvements in
technology and other changes as may be appropriate.
28. It is recognized that mechanical devices and other equipment
will not function properly 100 percent of the time. Such devices and
equipment may malfunction or fail. Secondary actions can be taken, however,
to prevent discharges of raw or partially treated waste water. A single
unit will not operate 100 percent of the time, but the platform together
with the onshore system may well eliminate the need to discharge raw or
partially treated waste water at any time. BPT consists of an entire
system, including process equipment, and not only a single waste treatment
unit.
29. The permittees have not provided sufficiently detailed information
relating to upsets, malfunctions, equipment failures, high effluent
concentrations, and other factors to facilitate an informed judgment concerning
situations which are beyond the reasonable control of the permittees, as
/
distinguished from those situations for which the permittees should be
held responsible.
30. Most upsets associated with oil and water separators that are
not mechanical can be corrected in 8 hours. Correction of mechanical
failures would require a longer time in most cases due to delivery problems.
(Exhibit C-27).
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-41-
31. Minor malfunctions or maintenance malfunctions include changing
pump packing glands, cleaning weirs, cleaning level control systems, and
treating for bacteria with additional chlorine. (Tr. 820).
32. Upsets and malfunctions may be self-correctable or may require
process alterations. They do not necessarily cause or require
bypassing of the process unit. (Tr. 516).
33. Equipment malfunctions or failures or normal maintenance operations
likely to cause upsets (i.e., exceeding the effluent concentration limitations
in the permits) can be "corrected" in a variety of ways. Waste water may be
diver. t-^d to onshore treatment during periods of replacement or repair on
the platforms, or it may be held in reserve storage on the platforms while
short duration repairs are undertaken. Deck washing can be scheduled to
permit equipment replacement, repair, or maintenance operations. Where
time losses due to shipment and delivery problems associated with equipment
subject to periodic malfunction or failure may be reasonaby anticipated,
redundant equipment may be installed or appropriate parts and replacements
may be stockpiled to insure rapid replacement or repair.
34. Equipment malfunctions or failures likely to cause upsets can be
minimized through proper maintenance and operations. High effluent
concentrations do not necessarily reflect, but might suggest improper
operating procedures. (Tr. 666-75).
Preventive measures, as well as modifications in the process system
and pretreatment, are considered part of BPT. The effluent limitations
for produced water were derived from data obtained from facilities having
a wide range of maintenance programs, including those which were not
41
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-42-
exemplary. Improvements in preventive maintenance should result in less
variability in effluent concentrations.
35. Upsets of deck drainage waste treatment systems are practically
nonexistent, except for equipment failure and during periods of drilling
or construction (Exhibit C-27).
36. Proper operation and maintenance would have the effect of
minimizing upset conditions for sewage treatment units (Tr. 820).
Experience with extended aeration units in the Gulf of Mexico has shown
the overall performance to be good. Although periods of high"variability
in BOD and suspended solids occur frequently, chlorine residuals have been
well within the effluent limitations set forth. Upsets in the bio-mass
have not been cited as a problem.
37. There is scant evidence in the record to indicate that the
permittees have fully explored or disclosed the various means available
to "correct" upset conditions when they occur or to prevent their occurrence.
The terms "upset" and "malfunction" are inadequately defined, statements
relating to the duration of such conditions are broad and generalized,
and the testimony of operating personnel consists of only vague recollections
of a few circumstances deemed to require bypassing.
38. In the absence of more detailed and persuasive documentation in
the record relating to equipment malfunctions, maintenance, and upsets, and
recognizing that the effluent limitations set forth herein are based on data
which was obtained during normal operations and includes upset conditions,
42
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periods of high effluent concentration, and drilling operations, there-is
no justification, based on the evidence available, to include an upset
provision in the permits pertaining to produced water, deck drains, and
sewage facilities and discharges.
One of the difficulties encountered in reviewing the record of this
proceeding has been an apparent confusion in the use of the terms "upset"
and "bypass." For the record, it is my understanding that the term "upset"
is used generally to describe any situation during which effluent
concentration limitations for a particular discharge are exceeded. The
causes of upsets apparently are diverse and, at times, unpredictable. For
that reason, the permittees predictably hesitate to specify what specific
events might be regarded as falling within a proposed upset provision.
They are concerned that an upset caused by an event or situation beyond
their reasonable control might lead to a permit violation, and thus subject
them to civil penalties or criminal prosecution.
As stated in the findings set forth above, I can find no reasonable
basis on the record for adopting an upset provision as proposed by the
permittees. An open-ended upset provision, quite simply, would invite
abuse and greatly complicate enforcement of the permit terms and
conditions. The burden on the regional office charged with enforcing
the permits would be ccnpounded. As presently formulated in the final
permits, the regional office has a difficult task ahead in monitoring
the permits, detecting probable violations, and exercising its enforce-
ment discretion. If the permittees' proposal were adopted, the regional
43
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-44-
of fice would be obliged in each case to find that a particular event
or situation causing an upset was not beyond the reasonable control of
the permittee before initiating any enforcement proceeding. One can
imagine that making'such a finding, when all the relevant facts are in
the exclusive possession of the permittee, would be an exceedingly
difficult task. One can also imagine that in most cases the entire
enforcement proceeding would then hinge on EPA being able to establish
either negligence or intentional misconduct on the part of the permittee
as the cause of the permit violation. I do not believe the Act contemplates
putting that burden on the Agency.
I am less fearful than the permittees appear to be that EPA's regional
enforcement offices will abuse or unreasonably apply their enforcement
discretion. I am, therefore, not convinced that any permit provision
which would have the effect of diminishing or curtailing the Agency's
enforcement responsibility and discretion would be in the best interest
of the nation's water pollution control program. At the same time, I am
not convinced that the permittees are unnecessarily or unlawfully exposed
to the possibility of prosecution for violations not sufficiently set
forth in the applicable law and regulations of the Agency.
E. Bypassing Provision
The following findings and discussion pertinent thereto relate to
the issue of whether a more liberal bypass provision should be included
in the permits pertaining to produced water, deck drains, and sewage
facilities and discharges, and, if so, the form which a more liberal bypass
44
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provision shoiild take. Only those findings necessary to resolve points in
controversy in the record are included.
39. The findings and discussion in the foregoing section relating to
upsets, to the extent they affect considerations relating to bypassing,
are incorporated by reference in this section of the decision.
40. The Brown and Root report (Exhibit 2) makes no reference to the
inclusion of "bypassing" in the definition of BPT. The OOC data base
includes data obtained during periods of upset, drilling, workover, and
other recurring operations associated with oil and gas production. The
performance of exemplary flotation systems considered representative
of BPT for treating produced water and deck drainage, therefore, takes
into account changes in influent, upsets, and other activities associated
with the normal operation of oil and gas production facilities.
41. Most preventive maintenance operations can be undertaken while.
the equipment is operating, and therefore do not require bypassing. The
only two instances of bypassing discussed in the record, concerning Mobil's
deck drain treatment system, were not related to maintenance activities.
One bypass occurred when drilling mud was accidentally put into the system
(improper operations) and the other when a motor controller burned out,
requiring 6 to 8 hours to repair (equipment failure). (Tr. 694).
42. Major maintenance operations do not necessarily cause or require
bypassing the process unit. Waste water may be put in reserve storage for
short duration maintenance or may be diverted to shore for treatment for
longer duration maintenance.
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It is recognized that additional free water may increase the
potential for freezing of the submarine platform-to-shore pipeline.
However, by taking appropriate steps, including scheduling major
maintenance in advance for periods when submarine pipeline freezing
is not critical and taking other steps to minimize down time, this
potential problem is not insurmountable.
43. No adverse conditions or over-burdening problems have resulted
from shipping waste water from offshore platforms to shore facilities,
even though relatively minor, undefined problems have been reported.
(Exhibits 31 and 37).
44. Pipeline freezing problems associated with the transport of
produced water to shore facilities have been corrected by enclosing the
"pig" receiver facilities onshore. (Exhibit 38).
45. The physical-chemical domestic waste treatment system on the
Mobil "Granite Point" platform has experienced severe operational
difficulties and maintenance requiring frequent bypassing of the
treatment facility.
It is recognized that physical-chemical sewage treatment units are
in the developmental and experimental stages and are not dependable or
effective for offshore platforms. Effluent limitations attainable by
extended aeration units are considered representative of BPT for
domestic waste treatment facilities. (Exhibit 36).
46. Shutting in offshore producing wells, even for short periods of
time, may cause significant reservoir damage and result in a permanent loss
of recoverable oil and gas.
46
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47. Under certain conditions, such as when maintenance operations
require a substantial amount of time (and sufficient reserve storage
capacity is not provided), the permittees may be faced with the choice
between an intentional bypass of the oil and water separation equipment
on the platform and shutting down the platform, and therefore shutting
in producing wells.
Since waste water can be pumped ashore for treatment, the need to
shut down platforms under such conditions would appear to be extremely
infrequent. If and when such conditions do exist, it is not inconceivable
that the bypass provision relating to the prevention of severe property
damage would apply, depending upon the specific circumstances presented.
48. The permittees have not presented sufficient evidence in the
record to indicate that a more liberal bypass provision should be included
in the permits pertaining to produced water, deck drains, and sewage treatment
facilities and discharges.
As stated previously, I find the record confusing in the use of the
term "bypass." It is my understanding that the term "bypass" is used
generally to describe any situation where an effluent to be treated
before discharge is either wholly or partially routed around the waste
treatment facility and is thereby discharged to the receiving water untreated
or only partially treated. As with upsets, the events or situations leading
to a bypass are diverse. The permittees hesitate to specify exactly what
events might be regarded as falling within a more liberal bypass provision
which they propose. Generally, such events would be associated with
maintenance or malfunction of equipment.
47
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-48-
The permittees contend that the existing permit provision prohibiting
bypass except where necessary to prevent loss of life or severe property
damage unnecessarily restricts their ability to perform maintenance and
repair of equipment. Moreover, they contend that the concept of BPT
inherently involves some provision for upset and bypass situations.
As stated in the findings set forth above, I am not persuaded that
the record shows a reasonable basis for liberalizing or expanding the
existing bypass provision contained in the final permits; Several
alternatives to bypassing are evident, including temporary storage
on the platform or diversion to shore for treatment. In the unusual
situation where these alternatives are not feasible, some other provision
can be made on an ad hoc basis in consultation with the regional office.
Where the only apparent alternative is to shut in wells and it is evident
that damage to the reservoir would be likely to result, that particular
situation might be covered by the existing severe property damage
exception to the bypass prohibition clause. These situations are not so
frequent that it would impose a great burden on the permittee or the
regional office to handle them on a case-by-case basis. Such an approach
is preferable to a relaxation of the bypass provision, which would invite
abuse and unduly complicate enforcement of the permit terms and conditions.
I am aware of the permittees' repeated assertions that they would not
intentionally bypass in any case other than where it is absolutely necessary
48
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to perform maintenance and make repairs. I believe they, as all responsible
companies, would adhere to these assertions. Nonetheless, I do not believe
that the effect of more liberal bypass provision—a diminution of the
Agency's enforcement responsibility and discretion—would be in the best
interest of the nation's water pollution control program.
F. Compliance Schedules
I am unable to determine on the record any basis for modifying the
compliance schedules as set forth in the final permits issued by the
Regional Administrator, except to the extent that the passage of time
since the inception of the adjudicatory hearing proceeding may have
delayed the implementation of the requirements set forth therein and in
this decision.
III. CONCLUSIONS
Procedural and Jurisdictional Matters
1. Jurisdiction exists in this matter under Sections 301 and 402
of the Act (33 U.S.C.A. §§ 1311 and 1342) and 40 CFR 125.36, et seg.
2. Under the peculiar circumstances of this consolidated proceeding,
a single decision uniformly applicable to all the permittees is required.
This Final decision is uniformly applicable to all the permittees and
facilities involved in this proceeding.
3. The initial decisions set forth sufficient findings of fact and
conclusions of law to perceive adequately the essential facts and law
upon which the decisions are based.
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4. The initial decisions were not timely issued, but the permittees
were not materially adversely affected by the delay and there is no basis
to conclude that the permittees' proposed permits are deemed issued and
in effect.
5. Issues of law certified to the Assistant Administrator for
Enforcement and General Counsel were answered shortly before the issuance
of the initial decisions, but because 6 of the 7 issues related to questions
of constitutional law inappropriate for General Counsel determination, the
Regional Administrator was justified in assuming the validity and
constitutionality of the regulations as a basis for the initial decisions.
6. Permittees' objection relating to the finality of evidentiary
rulings by the Presiding Officer is hypothetical in nature and therefore
not in issue.
7. The Regional Administrator was in error in issuing an initial
decision designated X-74-4 for the Union "Monopod" platform on May 13, 1975,
and therefore the initial decision designated X-74-3 issued on April 8,
1975, is applicable to both the Union "Grayling" and "Monopod" platforms.
There is no basis to conclude that the permittees' proposed permit for
the "Monopod" platform is deemed issued and in effect.
8. The "Agreement Settling Certain Disputed Issues," dated April 21,
1975, is valid and binding on all parties.
9. The NPDES permit regulations (40 CFR 125, et seq.), as written
and as applied to the permittees in this proceeding, meet all the applicable
requirements of the Administrative Procedure Act and the fifth amendment to
the U.S. Constitution.
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10. The applicable standard for review of the initial decisions of the
Regional Administrator is whether the Findings and Conclusions contained
therein are supported by the record and are found not to be arbitrary and
capricious.
Permit Terms and Conditions
11. All evidence presented at the consolidated adjudicatory hearing
must be considered in establishing effluent limitations for each permit.
12. The oil and grease effluent limitations concerning deck drain
waste water in the final permits and in the initial decisions (25/75) are
not supported by the record and are not consistent with effluent concentrations
attainable through the application of BPT.
13. The oil and grease effluent limitations concerning deck drain
waste water proposed by the permittees (85/140) are not supported by the
record and are not consistent with effluent concentrations attainable
through the application of BPT.
14. Effluent limitations attainable by the application of HPT to
deck drain waste water are 65 mg/1 monthly maximum ("daily average") and 90
mg/1 daily maximum. In terms of pounds per day, a preferred effluent
limitation for deck drainage, the following oil and grease effluent limitations
are attainable through the application of BPT: 5 Ibs/day monthly maximum
("daily average") and 9.25 Ibs/day daily maximum.
15. The Regional Administrator was in error in failing to include
in the initial decisions effluent limitations for produced water discharges.
Even though the permittees presently are not discharging produced water
offshore, the record indicates that permits would be issued containing
produced water effluent limitations.
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16. The oil and grease effluent limitations concerning produced water
in the final permits (25/50) are not supported by the record and are not
consistent with effluent limitations attainable through the application of
BPT.
17. The oil and grease effluent limitations concerning produced
water discharges proposed by the permittees (75/100) are not supported
by the record and are not consistent with effluent concentrations attainable
through the application of BPT.
18. Effluent limitations attainable by the application of BPT to produced
water discharges are 48 mg/1 monthly maximum ("daily average") and 72 mg/1
daily maximum.
19. The record supports the conclusion of the Regional Administrator
that the permits should not include an upset provision pertaining to
produced water, deck drains, and sewage treatment facilities and discharges as
proposed by the permittees.
20. The record supports the conclusion of the Regional Administrator
that the permits should not include a more liberal bypass provision pertaining
to produced water, deck drains, and sewage treatment facilities and
discharges as proposed by the permittees.
21. The conpliance schedules included in the final permits,
adjusted as may be necessary and appropriate to take into account any
delays in implementation due to the pendency of this proceeding, are
affirmed.
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22. This decision is based solely on the record presented and other
considerations relevant to the record of this proceeding, as provided
in 40 CFR 125.36 (n) (12).
The Regional Administrator, Region X, shall forthwith modify the
final NPDES permits subject to this proceeding as necessary to conform
with this decision.
Ri
Dated: September 25, 1975
53
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BEFORE THE ADMINISTRATOR
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C.
IN THE MATTER OF:
National Pollutant Discharge
Elimination System
Permit for
Shell Oil Company (Shell),
Permittee,
and
Atlantic Richfield Company
(Atlantic Richfield), Intervenor
NPDES Appeal No. 75-2
Case No. X-74-5
DECISION OF THE ADMINISTRATOR
This is an appeal pursuant to 40 CFR 125.36(n), et seq. from an
initial decision of the Regional Administrator, Region X, dated April 18,
1975, in the above styled proceeding. This appeal concerns oil and
grease effluent limitations and other National Pollutant Discharge
Elimination System (NPDES) terms and conditions for two (2) Shell offshore
oil and gas production platforms located in Cook Inlet, Alaska. The
platforms are identified as follows:
"A" Platform
"C" Platform
On July 1, 1971, Shell applied to the U.S. Army Corps of Engineers
for discharge permits for point source discharges at each of its two
offshore production platforms, pursuant to the then-existing federal Refuse
Act Permit Program. On August 7, 1973, Shell filed a short form supple-
mental application with EPA, pursuant to the NPDES permit program. On
September 28, 1973, the EPA Region X staff issued tentative determinations
54
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2
(draft permits) for the two platforms, followed by an informal public
hearing in Anchorage, Alaska on October 31, 1973. On December 21, 1973, the
Regional Administrator, Region X, issued final permits for each platform.
On January 4, 1974, Shell filed a request for an adjudicatory hearing on
certain terms and conditions of the final permits. Shell opposed a motion by
LPA regional staff to consolidate this adjudicatory hearing with other
Cook Inlet offshore platform permit proceedings (Consolidated No. X-74-17C)
and an adjudicatory hearing in this proceeding was held in Anchorage,
Alaska on August 6-9, 1974. On April 18, 1975, the Regional Administrator
issued the initial decision noted above.
On April 24, 1975, Shell filed a petition for review by the Administrator
of the initial decision rendered on April 18,- 1975. On June 10, 1975, EPA's
Chief Judicial Officer issued a notice granting Shell's petition for review
by the Administrator. Thereafter, the Chief Judicial Officer, acting
pursuant to a general delegation of authority from the Administrator,
conducted an informal briefing conference with the parties on July 9, 1975,
received written briefs from the parties on July 25, 1975, and heard final
oral argument on August 7, 1975. This decision is based on an extensive
review of the record of this proceeding conducted over a period of
approximately six weeks.
This proceeding, together with decisions issued simultaneously in two
related proceedings involving seven (7) offshore platforms (Consolidated
Ho. X-74-17C) and tiiree (3) onshore production facilities (Consolidated
No. X-74-18C) located in Cook Inlet, Alaska, is the first review
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conducted by the Administrator under 40 CFR 125.36(n) et seq. It is also,
therefore, the first instance in which questions involving the legal
sufficiency of the procedures for NPDES adjudicatory hearings have been
raised. For these reasons, among others, this decision is lengthier, more
detailed and more significant to the overall administration of the NPDES
permit program than otherwise might be the case. In an abundance of caution,
therefore, I am setting forth in this decision considerably more detailed
findings of fact and conclusions of law than otherwise might be necessary
or appropriate.
Although not specifically set forth as such in Shell's petition for
review, the issues for review, as summarized in Shell's brief submitted on
July 25, 1975, are as follows:
1. What oil and grease limitations for the discharge of deck drains
from Platforms A and C are achievable through the application of best
practicable control technology currently available?
2. Should the NPDES permits for Platforms A and C include a
provision for the bypassing of non-functioning pollution abatement
facilities?
In addition to the issues noted above, Shell has raised procedural
questions and objections concerning the proceedings below. These questions
and objections relate to the form of the initial decision, the standard
of review of the administrative record in this proceeding, and
evidentiary matters.
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I. PROCEDURAL OBJECTIONS
Shell objects to the following aspects of the initial decision:
1. The Regional Administrator did not address all issues of fact
and discretion contained in proposed findings and conclusions submitted
by the parties as required by 40 CFR 125.36(1)(2).
Shell's petition for review cites eleven instances in which they
contend the Regional Administrator failed to make a finding or conclusion,
as required by the regulations. It is apparent that the initial decision,
in fact, did not attempt to respond to each and every finding of fact and
conclusion of law proposed by Shell. In general, I must conclude that the
initial decision does not comply fully with the intent of the regulations.'
I do not find, however, that the initial decision fails to set forth a
sufficient statement of reasons and basis for the decision such that the
parties and reviewing tribunals are unable adequately to perceive the
essential facts on which the decision is based. Therefore, I find no basis
for vacating or remanding the initial decision on grounds of arbitrariness,
incompleteness, or vagueness. Considering the extensive review of the
record made in reaching this final decision, it is appropriate to set
forth herein any new supplemental findings and conclusions needed to adequately
apprise the parties and any reviewing court of the reasons and basis for the
Agency's final decision.
2. The Regional Administrator, in reviewing the record, failed to
observe the "substantial evidence" rule or any known standard of review of
an administrative record.
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Shell contends that the Regional Administrator selectively relied on
certain limited information in the record in rendering his initial decision,
while totally ignoring a substantial body of additional information submitted
to the record by Shell. Shell argues that the Regional Administrator "gave
only cursory attention to the record in an attempt to find any evidence
to support the permit limitations." Without here reviewing the entire body
of information in the record and citing specifically that relied upon by
the Regional Administrator, it is apparent that the Regional Administrator's
findings and conclusions are not without support in the record and thus are
not arbitrary and capricious.
This proceeding, the culmination of a lengthy and detailed fact-
finding process leading to the eventual issuance of an Agency permit, cannot
be equated with a proceeding required by statute to be heard and decided
solely "on the record" of the hearing. In the latter case, it is clear
that the substantial evidence test is appropriate in reviewing findings
made on the hearing record. Here, the hearing officer was not charged with
the responsibility to make findings on the record. Rather, the record was
certified to the Regional Administrator for his review and for appropriate
findings and conclusions. Although the EPA regulations do not specifically
set forth the scope of the Regional Administrator's review of the record, it
is clear that he, no less than the Administrator in reviewing a Regional
Administrator's initial decision, should decide the matters under review on
the basis of the record presented and any other consideration he deems
relevant to the record of the proceeding. In this proceeding, therefore, the
test should be whether the Regional Administrator's findings and con-
clusions are supported by the record and thus are not arbitrary and
capricious.
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3. The Regional Administrator improperly gave weight in making his
findings and conclusions to the deposition of an EPA employee taken three
months prior to the hearing without opportunity for Shell to participate
in the examination.
The deposition of Mr. Bodien (Exhibit 11, introduced by Shell) is
objected to on several grounds, including the aforementioned. Shell
contends that the Regional Administrator relied exclusively on certain
information and analyses contained in the Bodien deposition in rendering his
initial decision. I disagree. The initial decision also cites information
and data relating to a Mobil platform (I believe the initial decision erred
in referring to it as the "Dolly Varden," rather than the "Granite Point")
in support of findings relating to deck drain effluent limitations.
The initial decision considered and rejected other data and information.
Nonetheless, I do not conclude' that it was clearly erroneous for the Regional
Administrator to give weight to information and analyses contained in the
Bodien deposition. Shell had ample opportunity to challenge, rebut, and
contradict the matters contained therein.
EPA's regional office staff also has raised an evidentiary question
relating to the exclusion at the hearing of Exhibit 18-14-C-l (the "EPA
Preliminary Report") and a portion of Dr. Cook's testimony. They contend
that the Regional Administrator and the Administrator both can overrule the
Presiding Officer's devisions on the admissibility of evidence.
The Regional Administrator apparently did not consider either of the
two excluded items. On the matter of whether the Regional Administrator
or the Administrator could consider evidence excluded at the hearing, I am
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of the opinion that the provision in the regulations relating to the finality
of evidentiary rulings by the Presiding Officer (40 CFR 125.36(0(6)) would
not preclude consideration by the Regional Administrator or the Administrator
of matters excluded at the hearing by the Presiding Officer. My understanding
of that provision is that it is intended to preclude interlocutory appeals on
evidentiary rulings, and not to circumscribe the scope of review of the
record by the Regional Administrator or the Administrator.
II. FINDINGS OF FACT
A. Facilities Involved
The record includes information describing Cook Inlet and the two
Shell offshore platforms involved in this proceeding. The following findings
proposed by Shell in a document accompanying its written brief submitted on
July 25, 1975, concerning which there is no dispute on the record, are
adopted in full for purposes of this decision:
1. Shell Oil Company operates two platforms in the Middle Ground
Shoal Field, Cook Inlet, Alaska, for the purpose of drilling for and pro-
*
ducing crude oil. These platforms are designated Platform A and Platform C.
Platform A was installed at its present location in the summer of 1965.
Platform C was installed at its present location in the summer of 1967.
2. The original equipment on Platform C included a dissolved air
flotation cell for the deoiling of platform deck drainage water. Platform A
was equipped with a dissolved air flotation cell for the purpose of deoiling
platform deck drainage water in the summer of 1967.
6Q
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8
3. The flotation cells on Platforms A and C were manufactured by
Pollution Control Engineering. The flotation cell on Platform A is designed
to treat 150 gallons of water per minute, and the flotation cell on Platform
C is designed for 125 gallons per minute. These cells incorporate the
principle of air injection upstream of the cell. The air is injected under
pressure and "sheared" in the closed stream where it enters a pressured
vessel at approximately 60 psi. Downstream of this vessel the pressure is
released and the combined stream air and water enter the bottom of the
flotation cell. The air bubbles rise to the surface carrying with them
oil particles and other suspended solids. A horizontal rotating paddle
then skims the oil and other solids off the water surface Into a sludge
tank for disposal. The clean water is drawn off near the bottom of the
cell for discharge or recycled through the cell. Optimum cell operation
results when the throughput remains at near constant rates, since the
inflow rates are not necessarily constant, a recycle system is used to
recycle the effluent water back into the inflow of the cell to maintain a
constant flow rate through the cell. Electrolyte in the form of filtered
Cook Inlet water is added upstream of the flotation cell.
4. The flotation cells are operated by and regularly checked by
fully trained and qualified production operators who report to the Main-
tenance Foreman who in turn reports to the Production Foreman.
5. Deck drains consist of rainwater, snowmelt and all deck wash
water. During times when drilling, reconditioning wells, cleaning the
platforms, or moving the drilling rig are occurring on the platforms, the
oil and grease concentration in the influent to the flotation cell and,
consequently, in the effluent increases.
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B. Effluent Limitations—Deck Drains
The following findings of fact and discussion pertinent thereto
relate to the establishment of effluent limitations for deck drain discharges
from the platforms. Only those findings necessary for the resolution of points
in controversy in the record are included.
6. Exemplary flotation systems are representative of the Best Practicable
Control Technology Currently Available (hereafter referred to as "BPT") for
treating deck drainage and, therefore, provide a reasonable basis for
establishing numerical effluent limitations for deck drainage. (Exhibit 8).
7. Only three flotation systems currently treating deck drainage
from platforms in Cook Inlet present sufficient data for analysis in
establishing deck drainage effluent limitations.
8. In addition to the data presented in this proceeding relating to
Shell platforms "A" and "C", data pertaining to Mobil's "Granite Point"
platform is pertinent and relevant to this proceeding. The "Granite Point"
data, although not a part of this proceeding (but of the related consolidated
offshore proceeding designated X-74-17C), must be considered 1n determining
BPT deck drainage effluent limitations for Cook Inlet platforms.
9. Oil and grease data from other Cook Inlet platforms are not
representative of BPT systems or are of questionable reliability because the
samples were taken sporadically or were not properly preserved.
10. Deck washings result from cleaning various deck areas to remove
contaminants which cause safety and fire hazards. The characteristics of
the waste are related to the type of equipment on the platform and the
presence of drilling operations.
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10
11. The effluent limitations for deck drains set forth herein take
into account the factors set forth in Section 304(b)(l)(B) of the Act to the
maximum extent possible, recognizing that only three waste water treatment
facilities in Cook Inlet are representative of BPT and that only limited
data are available.
12. Dr. Holliday's analysis of deck drainage oil and grease data from
the Shell platforms concludes that, based on his judgment that the data was
not lognormal but subject to the use of "Chebyschev1s inequality," effluent
limitations of 100 mg/1 daily average and 200 mg/1 daily maximum
(hereinafter such limitations are sometimes referred to as 100/200,
25/75, etc.) are attainable 89% of the time by the application of BPT.
13. A statistical analysis of data representative of BPT
systems from the three Cook Inlet platforms treating deck drainage
I/
indicates that the data are lognormally distributed and that the following
y
oil and grease effluent limitations for deck drainage are attainable:
3/
65 mg/1 monthly maximum (daily average") and 90 mg/1 daily maximum.
I/
Aitchison, J., and Brown, J.A.C., "The Lognormal Distribution," (1969),
Cambridge University Press.
y
Analysis of the Shell data shows that the data follow a lognormal
distribution with log mean = .98 and log standard deviation = .56. The 97.5%
attainable limits for Shell are 83 mg/1 monthly maximum ("daily average") and
116 mg/1 daily maximum, while the "Granite Point" data shows values of 46/64.
The Shell data used in this analysis was that used by Dr. Cook. The Mobil
data has been corrected for cooling water flow which occurred in 17 of the
26 data points.
I/
These limitations are based on four composite samples per month, where each
composite sample is the result of four grab samples on a given day The terms
"monthly maximum" and "daily maximum" are defined, with respect to the fore-
going sampling scheme, as follows (1) "monthly maximum" is the value the
monthly average shall not exceed, and (2) "daily maximum" is the value the
daily composite sample shall not exceed
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14. A "pounds per day" limitation reflects the variability in deck
flow and oil mix and, therefore, is a preferred limitation for deck
drainage. The following pounds per day oil and grease effluent limitations
for deck drainage are attainable: 51bs./day monthly maximum ("daily
average") and 9.25 Ibs/day daily maximum.
In making the foregoing findings, I am not unaware of the information
and data relied upon by the Regional Administrator in rendering the initial
decision, including Mobil data which averaged 13.6 mg/1 and a review of
some 350 samples gathered from three Cook Inlet platforms where the
average concentration reported was less than 18 mg/1. I believe he should
have given more weight than he did, however, to additional information and
data submitted by Shell showing oil and grease concentrations ranging from
2.2 mg/1 to 1440 mg/1. Although not relied upon in this decision, I
also believe it is unfortunate that the EPA Preliminary Report (Exhibit
18-14-C-l), which was introduced at the hearing but not admitted in
evidence, was not considered.
I agree with the initial decision to the extent that Shell has not
shown that the effluent limitations it proposes for deck drainage withstand
scrutiny and analysis of the pertinent data. As sparse as the relevant
data are, I must conclude that the data are sufficient to support the
Findings set forth above.
C. Bypassing Provision
The following findings of fact and discussion pertinent thereto relate
to the issue of whether the permits should include a provision for the
bypassing of non-functioning pollution abatement facilities, and, if so,
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the form which such a provision should take. Only those findings
necessary for the resolution of points in controversy in the record are
included.
15. It is recognized that mechanical devices and other equipment
will not function properly 100 percent of the time. Such devices and
equipment may malfunction or fail. Secondary actions can be taken,
however, to prevent discharges of raw or partially treated waste water.
A single unit will not operate 100 percent of the time, but the platform
together with the onshore system may well eliminate the need to discharge
raw or partially treated waste water at any time. BPT consists of an
entire system, including process equipment, and not only a single waste
treatment unit.
16. In order to minimize unexpected equipment failures and
malfunctions, Shell has a preventive maintenance program underway on
each platform (Exhibit 2).
17. Platforms "A" and "C" currently do not have domestic waste water
treatment systems, although installation of such systems has been agreed
to by Shell pursuant to stipulation with the EPA regional office. Extended
aeration units on offshore platforms and drilling rigs in the Gulf of Mexico
have shown that overall performance is good, although high BOD and suspended
solids concentrations have occurred frequently. No instance has been cited
where bypassing was required to correct BOD or suspended solids upset
conditions.
18. There is little evidence in the record to indicate that Shell
has fully explored or disclosed the various alternatives to bypassing.
The record is wholly inadequate in articulating even a representative
sampling of the kinds of events which might require bypassing.
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19. In the absence of .more detailed and persuasive documentation in-the
record relating to equipment malfunctions, maintenance, and upsets which
might require bypassing (or have in the past), and recognizing that the
effluent limitations set forth herein are based on data which includes upset
conditions, there is no justification, based on the evidence available, to
include a provision in the permits for bypassing non-functioning pollution
abatement equipment, other than under circumstances already exempt from
the bypass prohibition in the final permits.
One of the most troublesome aspects of this proceeding is the wholly
inadequate documentation of a need for bypassing, as proposed by Shell. As
an example, the Regional Administrator found that, "Shell has facilities for
shipping the deck drain ashore for treatment."- In its petition for review,
however, Shell objects to that finding, stating that, "There is no evidence in
the record to support this finding." I can only conclude that if Shell is
correct, then I find it hard to determine a need for bypassing when
information pertaining to such a potentially significant alternative to
bypassing is wholly missing from the record. I should add that the record
also does not appear to state the negative, i .e. that Shell does not have
facilities for shipping the deck drain ashore for treatment. I dwell on
this only as an example of why I believe Shell has failed to present on
the record a reasonable case for bypassing.
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III. CONCLUSIONS
Procedural and Jurisdictional Matters
1. Jurisdiction exists in this matter under Sections 301 and 402 of
the Act (33 U.S.C.A. 1311 and 1342) and 40 CFR 125.36, et seq.
2. The initial decision sets forth sufficient findings of fact and
conclusions of law to perceive adequately the essential facts and law
upon which the decision is based.
3. The findings and conclusions contained in the initial decision
are not so vague or incomplete as to indicate that they are unsupported
by evidence in the record or are arbitrary and capricious.
4. The NPDES permit regulations (40 CFR 125, et seq.), as written
and as applied to the permittee in this proceeding, meet all the applicable
requirements of the Administrative Procedure Act and the fifth amendment to
the U.S. Constitution.
Permit Terms and Conditions
5. The oil and grease effluent limitations concerning deck drain
waste water in the final permits and the initial decision (25/75) are not
supported by the record and are not consistent with effluent concentrations
attainable through the application of BPT.
6. The oil and grease effluent limitations concerning deck drain
waste water proposed by Shell (100/200) are not supported by the record
and are not consistent with effluent concentrations attainable through
the application of BPT.
7. Effluent limitations representative of the application of BPT to
deck drain waste water are 65 mg/1 monthly maximum ("daily average") and
90 mg/1 daily maximum. In terms of pounds per day, a preferred effluent
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limitation for deck drainage, the following oil and grease effluent
limitations are attainable through the application of BPT: 5 Ibs/day
monthly maximum ("daily average") and 9.25 Ibs/day daily maximum.
8. The record supports the conclusion of the Regional Administrator
that the permits should not include a provision for bypassing non-functioning
pollution abatement equipment, other than under circumstances already exempt
from the bypass prohibition contained in the final permits.
9. This decision is based solely on the record presented and other
considerations relevant to the record of this proceeding, as provided in
40 CFR 125.36(n)(12).
The Regional Administrator, Region X, shall forthwith modify
the final NPDES permits subject to this proceeding as necessary to
conform with this decision.
Russel I, E. Train
Dated: September 25, 1975
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BEFORE THE ADMINISTRATOR
U. S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C.
IN THE HATTERS OF:
National Pollutant Discharge
Elimination System
Permits for
Marathon Oil Company
(Marathon), Atlantic Richfield
Company (Atlantic Richfield)
Shell Oil Company (Shell
Permi ttees
NPDES Appeal No. 75-3
Consolidated No. X-74-18C and
Case Nos. X-74-8
X-74-10
X-74-11
DECISION OF THE ADMINISTRATOR
This is an appeal pursuant to 40 CFR 125.36(n), et seq. from initial
decisions of the Regional Administrator, Region X, dated April 21, 1975, in
the above styled consolidated proceeding. This appeal concerns oil and
grease effluent limitations and other National Pollutant Discharge
Elimination System (NPDES) permit terms and conditions for three (3)
onshore oil and gas production facilities located at Cook Inlet, Alaska,
The production facilities are identified as follows:
Marathon
Trading Bay Production Facility
Atlantic Richfield
Granite Point Production Facility
Shell
East Foreland Production Facility
During the period June 30, 1971 through December 13, 1971, the individual
permittees (sometimes referred to as the "petitioners") applied to the U.S.
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Army Corps of Engineers for discharge permits for point source discharges
at each of the three production facilities, pursuant to the then-existing
federal Refuse Act permit program. On October 12, 1973, the EPA Region X
staff issued tentative determinations (draft permits) for each of the three
production facilities, followed by an informal public hearing in Anchorage,
Alaska on December 13, 1973. On December 28, 1973, the Regional
Administrator, Region X, issued final permits for each production facility.
On January 4, 1974, the permittees requested adjudicatory hearings on certain
terms and conditions of the final permits. Thereafter, on motion of the EPA
regional staff, the adjudicatory hearings for the three production facilities
were consolidated by the Regional Administrator and the consolidated hearing
was held in Anchorage, Alaska on November 12-15, 1974. On March 31, 1975,
the Presiding Officer certified the record of the hearing to the Regional
Administrator and eight issues of law to the Assistant Administrator for
Enforcement and General Counsel .
On April 21, 1975, the Regional Administrator issued the initial
decisions noted above.
On April 26, 1975, the permittees filed a joint petition for review
by the Administrator of the initial decisions rendered on April 21, 1975.
On June 5, 1975, EPA's Chief Judicial Officer issued a notice granting
permittees petition for review by the Administrator. Thereafter, the Chief
Judicial Officer, acting pursuant to a general delegation of authority from
the Administrator, conducted an informal briefing conference with all the
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parties on July 9, 1975, received written briefs from the parties on July 25,
I/
1975, and heard final oral argument on August 7, 1975. This decision is based
on an extensive review of the record of this proceeding conducted over a
period of approximately six weeks.
This proceeding, together with decisions issued simultaneously in two
related proceedings involving seven (7) offshore platforms (Consolidated Mo.
X-74-17C) and two (2) additional offshore platforms (Case No. X-74-5) located
in Cook Inlet, Alaska, is the first review conducted by the Administrator
under 40 CFR 125.36(n), et seq. It is also, therefore, the first instance
in which questions involving the legal sufficiency of the procedures for
NPDES adjudicatory hearings have been raised. For these reasons, among
others, this decision is lengthier, more detailed and more significant to
the overall administration of the NPDES permit program than otherwise might
be the case. Because of the multiple parties and complicated legal and
technical issues involved, it is hard to imagine a more difficult set of
circumstances to review. In an abundance of^caution, therefore, I am setting
forth in this decision considerably more detailed findings of fact and
conclusions of law than otherwise might be necessary or appropriate in less
complicated proceedings.
The issues set forth in permittees' petition for review are the
following:
1. The effluent limitations to be applied to produced water.
2. The compliance schedule respecting the implementation of
effluent limitations for produced water.
I/ Most of the August 7 oral argument transcript in this proceeding was
Tost by the court reporter and, therefore, pursuant to permittees' request,
additional oral argument to reconstruct that portion of transcript was
heard in Seattle on September 4, 1975.
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3. Whether an upset provision should be included in the permits
pertaining to produced water treatment facilities and discharges, and,
if so, the form which an upset provision should take.
4. Whether a more liberal bypass provision should be included in
the permits pertaining to produced water treatment facilities and discharges,
and, if so, the form which a more liberal bypass provision should take.
In addition to the issues noted above, the petitioners have raised
a number of procedural and legal objections to the proceedings below.
These objections relate to the form and timing of the Regional Administrator's
initial decisions, the form and timing of the disposition of issues of law
certified to the Assistant Administrator for Enforcement and General
Counsel, and the legal sufficiency of the NPDES adjudicatory hearing process
under the Administrative Procedure Act (APA) and the due process clause
of the Constitution of the United States. I will address these objections
first.
I. PROCEDURAL AND LEGAL ISSUES
A. Form and Timing of Initial Decisions
The petitioners object to the following elements of the form and timing
of the initial decisions:
1. Issues of law certified to the Assistant Administrator for
Enforcement and General Counsel on March 31, 1975, were not decided prior
to issuance of the initial decisions and could not therefore have been
relied upon by the Regional Administrator as required by 40 CFR 125.36(m)(4).
The record shows that the issues of law certified to the General
Counsel on March 31, 1975, were answered on June 27, 1975. Since the initial
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decisions of the Regional Administrator were issued on April 21, 1975,
there is no question that the Regional Administrator could not have relied
upon the General Counsel's response to these questions in preparing his
initial decisions. It appears, however, that the objection is largely
academic (with one exception) since, as the petitioners point out in
their arguments on the other issues, the General Counsel declined to opine
on 7 of the 8 issues because of their federal constitutional nature. The
remaining issue—relating to the finality of rulings of the Presiding
Officer on the admissibility of evidence and other procedural matters
under 40 CFR 125.36(i )(6)--has only hypothetical application to this
proceeding since it has not been shown that the Regional Administrator in
any specific instance substituted his judgment for that of the Presiding
Officer on procedural rulings. Therefore, I find no basis for concluding
that the Regional Administrator acted contrary to the requirement of
40 CFR 125.36(m)(4). In view of the lateness of the General Counsel's
response, I can only conclude that the Regional Administrator in each
instance presumed the validity of the Agency's regulations. I can find
no fault with that presumption as a basis for issuing the initial decisions
and, indeed, would be surprised had he determined otherwise.
2. The Regional Administrator did not address all issues of fact and
discretion contained in permittees' proposed findings and conclusions as
required by 40 CFR 125.36(1) (2).
Following the adjudicatory hearing, the permittees submitted numerous
proposed findings of fact and conclusions of law. EPA regional staff also
submitted proposed findings and conclusions. The separate decisions issued by
the Regional Administrator each include 2-3 pages of discussion relative to
each separate facility and an attached "Statement of Findings and
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Conclusions" (8 pages) applicable to all three facilities. While I am
sympathetic to the difficulty of reviewing a highly complex record and
responding, in detail, to all the proposed findings which may be submitted by
a party in a case of this type, I must conclude that the initial decisions
do not comply fully with the intent of the regulations. There is considerable
merit in the argument made by the EPA regional staff that the initial decisions
need only contain the "ultimate facts" in issue, and need not address each
and every finding proposed by a party. The petitioners contend, however,
that a failure to set forth detailed findings and conclusions and the
reasons and basis therefor is more than a matter of style and form. Such
shortcomings may adversely affect the ability of parties and reviewing
tribunals to perceive adequately the essential facts and law on which a
decision is based. I do not believe that to be the case in this proceeding.
Even though some statements in the initial decisions are rather perfunctory,
there is sufficient detail and explanation to perceive adequately the
essential facts and law on which the decisions are based. Such infirmities
in style and form as do exist are not sufficient to require that the initial
decisions be vacated. (Apparently, as a result of a drafting or editing error,
the petitioners request that a "second initial decision" in this proceeding
also be vacated. There is no such "second initial decision" at issue in this
proceeding.) Considering the extensive review of the record made in
reaching this final decision, it is appropriate to set forth herein
any new or supplemental findings and conclusions needed to adequately apprise
the parties and any reviewing court of the reasons and basis for the Agency's
final decision.
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B. Issues of Law
The issues of law certified to the Assistant Administrator for Enforcement
and General Counsel by the Presiding Officer on March 31, 1975, include the
APA and Federal constitutional due process issues raised in the petitions for
review, and therefore they are addressed together herein.
Before addressing the particular issues raised, I should state
unequivocally that I believe the NPDES permit regulations, as written and as
applied to the permittees in this proceeding, meet all the applicable require-
ments of the APA and the fifth amendment to the U.S. Constitution. The
constitutionality of the NPDES regulations was fully considered at the time
the regulations were promulgated. I should also state clearly at the outset
that I do not believe it is necessary or appropriate for me, in this permit
review proceeding, to address in detail the specific constitutional issues
which have been raised. These arguments, in all likelihood, would be heard
de novo by a Court of Appeals reviewing this decision. To attempt to answer
specifically these questions in this decision (and thus in every other permit
review proceeding in which these or other constitutional questions are raised)
would place an unacceptable burden on the adjudicatory hearing process. I
should note, in addition, that constitutional questions similar to those posed
in this proceeding are currently before the Seventh Circuit Court of Appeals in
another permit proceeding and in the District Court for the Northern District
of Illinois in an APA challenge to the NPDES regulations. I believe those
to be the proper fora for review of these constitutional issues.
Nonetheless, I feel compelled to state for the record of this proceeding
my general understanding of the nature of the NPDES adjudicatory hearing
process within the context of the APA and Federal constitutional law relating
to administrative hearings, for whatever benefit it may in this and future
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proceedings. I would be remiss not to address these matters and attempt to
resolve some elements of the confusion and controversy which have existed in
this proceeding (and the related Cook Inlet proceeding designated X-74-17C)
regarding the nature of the NPDES adjudicatory hearing process.
Fundamentally, the process of determining terms and conditions for
NPDES permits is an information-gathering and fact-finding process. The
process begins with the submission of information and data by the
applicant. Thereafter, the applicant and the public are provided several
opportunities to participate in the administrative process and thereby
protect their interests. EPA regulations require that public notice be
given of the proposed issuance of each permit, setting forth EPA's tentative
determinations. Interested persons may submit written comments concerning
the Agency's tentative determinations and may request a public hearing.
The written comments must be considered by the Agency in making its final
determinations. If it is determined that a significant degree of public
interest regarding a proposed permit exists or that a public hearing
would provide useful information, the Agency may hold a public hearing after
due notice. At the hearing, any person may submit oral or written statements
and the information provided must be considered by the Agency in making its
final determinations. If the Agency's subsequent determinations are sub-
stantially changed from earlier tentative determinations, EPA must give
public notice of any such changed determinations.
After a final determination is made by the Agency (i.e., a final decision
on a permit is tendered to the applicant), any interested person may submit
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a request for an "adjudicatory hearing." Such hearings are not required by
the Act, but pursuant to EPA regulations will be granted if the applicant
has met certain requirements in its request and if EPA determines that the
request "sets forth material issues of fact relevant to the questions of
whether a permit should be issued, denied, or modified." Following an
adjudicatory hearing, the EPA Regional Administrator or his designee renders
an initial or recommended decision on the issues presented at the adjudicatory
hearing. If the applicant is still dissatisfied with the terms and conditions
of the final permit, he may request review by the Administrator.
At each stage of the foregoing process, EPA is required to make
technical judgments concerning the degree of effluent control required to
comply with the provisions of the Act. In those cases where the Act's
technology-based standard for 1977 applies — I .e., "best practicable control
technology currently available"--the Agency either adheres to previously
established "effluent guidelines" for the particular industry or, where such
guidelines have not yet been established relies upon the "professional judgment"
*
of the Agency's staff in setting permit limitations and conditions. In the
latter case (which is the case in this proceeding), the exercise of pro-
fessional technical judgment inherently involves some case-by-case "legislative"
or policy determinations, as well as specific "judicial" or factual
determinations. Thus, particularly in the case of pre-guideline permits, it is
difficult to separate legislative from judicial facts and determinations.
It is important to note also that the determinations being made in the
issuance of NPDES permits relate to future conduct, as distinguished from factual
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determinations regarding past events. While past performance is pertinent
in determining the level of control needed to meet the requirements of the Act,
the thrust of NPUES permits is to determine what steps an applicant must
take in the future to control effluent discharges. These considerations are
relevant and important to an understanding of how the NPDES adjudicatory
hearing process relates to the requirements of the APA and constitutional due
process.
With this background, the following questions emerge:
Does the Act require a trial-type APA adjudication in NPDES permit
hearings, with all the attendant procedural safeguards of the APA? If not, is
the NPDES adjudicatory hearing process nonetheless infirm because it does not
provide sufficient procedural safeguards in keeping with due process requirements
of the U. S. Constitution?
NPDES adjudicatory hearings are "adjudications," as defined by the
APA, since, by tracing through the defined terms, it is inescapable that
agency process for the formulation of an agency permit is an "adjudication."
Significantly, however, the sections of the APA applicable to agency
adjudications apply "in every case of adjudication required by statute to be
determined on the record after opportunity for an agency hearing. . .
(emphasis supplied)." Section 5 of the APA (5 U.S.C. I 554) has been
interpreted to mean that Sections 7 and 8 of the APA (5 U.S.C. §i 556 and 557)
need be applied only where the agency statute, in addition to providing
a hearing, prescribes explicitly that it be 'on the record1. Section 402
of the Act only requires "opportunity for public hearing" before the
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issuance of an NPDES permit. I am not unaware of some cases which have
held that even in the absence of statutory language directing a hearing
"on the record," some agency hearings may nonetheless fall within the ambit
of the APA.
I am also aware of a 1973 opinion of the Department of Justice Office
of Legal Counsel to this Agency, addressing the question of whether
administrative law judges would be required to preside at NPDES
adjudicatory hearings, which states:
"In the absence of unequivocal legislative history
indicating a contrary result, history not here
present, we do not believe that the omission of the
phrase 'on the record' from section 402 may be
said to reflect any deliberate Congressional
intention."^/
Thus, the opinion concluded, since administrative decisions 1n NPDES cases
are subject to judicial review in the courts of appeal and the rules of
practice require the submission of the agency record for review, the
administrative decision must be "on the record" and, accordingly,
administrative trial judges would be required. One year after the above
opinion was rendered, however, the NPDES regulations were amended in several
important respects, and the matter again has been submitted to the Justice
Department for a legal opinion. Unfortunately, th t opinion is not yet
available to me for additional guidance. My impression, however, is that
even if the Department of Justice should again opine that administrative
law judges are required to preside at NPDES permit hearings, that still would
not resolve the issue of whether NPDES permit hearings are subject to the
2/ Memorandum Opinion dated June 5, 1973, from Robert G. Dixon, Jr.,
Assistant Attorney General, Office of Legal Counsel, U.S. Department of
Justice, to Alan G. Kirk II, General Counsel, EPA, and Anthony L.
Mondello, General Counsel, Civil Service Commission, p. 2.
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full range of procedural requirements applicable to an "adjudication" under
the APA. At the very most, it seems to me, adjudicatory hearings on initial
NPDES permits might be considered "initial licensing" proceedings under the
APA. As such, they would be exempt from certain requirements of the APA,
such as the rendering of a recommended decision by an administrative law
judge.
On the basis of the foregoing discussion, which is not intended to be an
exhaustive analysis of the issues and law involved, I can only conclude
that the petitioners have not presented a convincing argument that the APA
is fully applicable to NPDES permit hearings. Even apart from the questions
of APA applicability, the petitioners have failed to demonstrate that the
procedures employed in this proceeding were fundamentally lacking in fairness.
The permittees argue that due process principles under the U.S.
Constitution require trial-type adjudicatory hearings on the terms and
conditions of NPDES permits and that such hearings be "on the record." While
I agree that NPDES permit applicants must be afforded constitutional due
process, I do not believe that the Agency's regulations or the procedures
employed in this particular proceeding have denied the permittees a fair
hearing in keeping with constitutional due process requirements.
The due process clause does not require a full adjudicatory hearing in
every case of government restraint of a private interest. The Supreme Court
has stated that:
". . .consideration of what procedures due process may
require under any given set of circumstances must begin with
a determination of the precise nature of the government
function involved as well as of the private interest that
has been affected by governmental action."3/
3/ Cafeteria & Restuarant Workers Union, Local 473, AFL-CIO v.
McElroy, 367 U.S. 886, 894-95 (1960).
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I believe the NPDES regulations fully reflect the "precise nature
of the government function involved," as well as the private interests
affected, in setting forth the panoply of administrative procedures for
determining the terms and conditions of NPDES permits. Both the applicant
and the public are afforded ample opportunities to challenge the tentative
determinations of the Agency, to express their views in informal public
hearings, and, in a more formal setting to present their own evidence,
data, and information, as well as rebut the information being relied upon
by the Agency. To apply the additional strictures which petitioners urge
would greatly reduce the flexibility needed to consider and evaluate the
technical information and data which is inherent in the NPDES permit
process, without materially adding to the elements of a fair hearing already
provided.
Without addressing each point separately made by the petitioner, it
should suffice to state that the due process objections raised—Including
commingling of functions in the Regional Administrator, consideration of
matters outside the record of the hearing, lack of discovery and subpoena
power, and evidentiary rulings by the presiding officer—are not supported
by sufficient showings that the petitioners in fact were deprived of
opportunities to furnish their own comments and testimony, rebut Information
and evidence relied upon by the Agency, obtain additional Information In
the possession of the Agency, and, by all these means, participate fully
in the administrative process to protect their interests.
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For these reasons, which I do not intend to be a complete analysis of
the issues and law involved, I am convinced that the petitioners have not
been denied due process under the Constitution.
II. FINDINGS
A. Facilities Involved
The record includes considerable information describing the onshore
oil and gas production facilities involved in this proceeding. The following
findings proposed by the permittees in a document accompanying their written
brief submitted on July 25, 1975, are, with certain exceptions indicated,
adopted for purposes of this decision:
1. Cook Inlet is a body of water located near Anchorage, Alaska, lying
in a general northeast-southwest direction with its northermost regions
touching Anchorage, and its southwestern regions opening to the North
Pacific Ocean and is navigable waters of the United States.
2. The facilities for which the NPDES permits were issued on December 28,
< 1973 are oil/water separating facilities located on or near the shore of
Cook Inlet, Alaska, between parallels of North latitude 60° and 61°,
approximately 70 miles southwest of Anchorage. The locations of these
facilities are identified on demonstrative maps included in the respective
"fact sheets," which are exhibits in this case.
3. The facilities are owned, maintained, and operated by various oil
companies, and the discharges from the particular facilities Involved in
these proceedings are also described in the respective "fact sheets."
4. Petitioners operate onshore production facilities 1n Cook Inlet as
follows:
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a. Marathon operates the Trading Bay Production Facility located on the
West Foreland in Cook Inlet, Alaska. Crude petroleum, produced water and
other wastes are pumped through submarine pipelines from three McArthur River
Field platforms and one Trading Bay Field platform to the production facility,
The oil is received in an emulsified form and is treated
using vessels known as line heaters, flow splitters, and heater treaters.
This treating process has a daily capacity of 195,000 barrels of fluid (crude
oil, produced water and other wastes). Produced waters, sediments and
unbroken emulsion collected from the various vessels are piped to a
10,000 barrel skim tank which provides retention time of about six hours.
Oil is skimmed from the skim tank and is recycled. The water is piped
to one of three skim pits where it is aerated, retained and syphoned from
pit to pit. Oil is removed from the pits and the water is discharged
into Cook Inlet. [Sentence intentionally omitted.]
The facilities which pump crude oil and produced water into Trading
Bay Production Facility are: Dolly Varden Plajtform; Monopod Platform;
King Salmon Platform; and Grayling Platform.
b. Shell Oil Company operates the East Foreland Production Facility
at Cook Inlet for the purpose of treating crude oil and water produced
from the Middle Ground Shoal Field, Alaska and removing significant traces
of oil from the water prior to discharge into the Inlet. The original
deoiling facilities, installed in 1965, consisted of a 2000 barrel retention/
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skimmer tank and a 500 barrel oil recovery tank. The deoiling facilities-
were revised in 1969 and currently consist of: 1) a 2000 barrel retention/
skimmer tank; 2) a 450 gallons per minute (14,500 barrels per day) Pollution
Control Engineering Company fully pressurized dissolved gas (air) flotation
cell system; and 3) a 500 barrel oil recovery tank. The flotation cell was
added as a means of increasing the waste oil recovery efficiency of the
facilities to a practical maximum. Deoiled effluent is piped into Cook
Inlet.
The waste oil, which is removed by the deoiling equipment, is
temporarily stored in the 500 bbl oil recovery tank and returned to the oil
treating system of the East Foreland Production Facility for additional
treatment.
The East Foreland Production Facility is currently treating 6,800 barrels
per day of produced water as of September 19, 1974. Based on estimates of
Shell engineers the produced water is expected to increase by about 61%
between now and January 1978. In addition, the facilities will be
treating produced water received from the AMOCO Production Company's (AMOCO)
Dillon Platform. The volume of this water is estimated to vary from about
400 to 8,000 barrels per day, depending on the operation being performed by
AMOCO on the platform and equipment or operating problems encountered by AMOCO.
c. Atlantic Richfield operates the Granite Point Production Facility
located on the west side of Cook Inlet approximately 50 miles WSW of
Anchorage, Alaska. Crude petroleum, produced water and other wastes are
pumped through submarine pipelines from two production platforms in the
North Trading Bay Unit.
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The production (oil and water) from the Spark Platform comes ashore
through a submarine pipeline and enters the flow splitter, then passes
though one Chemelectric heater-treater). Dehydrated crude oil from both
heater-treaters flows to the shipping tanks. Produced wastewater from the
flow splitter and the two heater-treaters flows to another treater
(Chemelectric heater-treater) where the wastewater is subjected to
increased heat. From there the wastewater flows through two 5,000 barrel
(3-ring, galvanized, bolted API) tanks in series, and then through a trough
and channel system (providing aeration) into Cook Inlet. The average flow
is approximately 9,000 barrels per day.
The facilities which pump crude oil, produced water and other wastes
into Granite Point Production Facility are: Spark Platform, and "A" Platform.
5. Each of the facilities is connected to offshore platforms by means
of submarine pipelines lying zero to approximately 120 feet below the surface.
These connecting submarine pipelines are typically 8 inches in diameter,
except that Atlantic Richfield Company's line is approximately 5.5 inches
inside diameter. Approximately 700 to 2,100 pounds per square inch is the
typical operating pressure of these pipelines which are approximately
6 to 10 miles long.
6. A liquid called "produced water" is produced on the platforms
as a result of extraction activities on the platform from the geological
strata lying several thousand feet below each platform.
7. The fluid stream produced from the geological formation is an
emulsion consisting primarily of produced water, crude oil and natural gas.
The produced water phase is separated for further treatment and contains
various dissolved salts, dissolved gases such as carbon dioxide, suspended
solids, and natural surface active agents. [Sentence intentionally omitted.]
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8. When the produced water is raised to the surface ("wellhead")
most of it is typically pumped to the shore through the submarine pipelines
at various rates (gallons per minute).
B. Effluent Limitations—Produced Water
The following findings and discussion pertinent thereto relate to
the establ ishr,:?p,t of effluent limitations for produced water discharges
from the onshore production facilities. Only those findings necessary to
resolve points in controversy in the record are included.
9. The treatability of any waste water depends upon its specific
characteristics. The characteristics of produced water vary from one
time to another and from location to location, resulting in different
effluent concentrations even when exemplary treatment systems are used.
Produced water characteristics also vary from strata to strata, from
reservoir to reservoir with a field, and from one field to another.
Produced waters from different strata, reservoirs, and fields are not
necessarily physically and chemically compatible in terms of treatability.
10. The type of operation, waste characteristics, and location are the
principal factors affecting subcategorization of the oil and gas extraction
industry for the purpose of establishing effluent limitations. Size of
facility, climate, and volume of waste generated have little influence on
treatment technology. (Exhibit 19, p.I-1).
11. Subcategorization is not needed to account for production field
age or brine produced since similar treatment technology is used regardless
of the quantity of brine produced. (Exhibit 19, p.IV-4).
12. Existing waste water treatment systems in the Gulf of Mexico and
Cook Inlet, Alaska, are subcategorized to allow discharges to the receiving
waters. No further subcetegorization based on produced water characteristics
is justified. (Exhibit 19, P-IV-&).
-------
19
13. There is a correlation between the treatability of produced water
being treated in the coastal waters of Louisiana and that being treated in
Cook Inlet, as demonstrated in Mr. Sebesta's testimony and the EPA Draft
Development Document for Effluent Limitations Guidelines and New Source
Performance Standards for the Oil and Gas Extraction Point Source Category,
October 1974 (hereafter referred to as the "Draft Development Document").
(Exhibit 19).
14. The Draft Development Document is the most reliable study for
determining Best Practicable Control Technology Currently Available (hereafter
referred to as "BPT") because it uses the most substantial data base available
and considers the age of the facilities, the process employed, engineering
aspects, process changes, and non-water quality environmental impact,
including energy requirements.
15. Physical/chemical produced water treatment systems consisting
of equalization, chemical addition, and gas flotation are the best practicable
technology for facilities located in the Gulf of Mexico and coastal Alaska.
(Exhibit 19, p. 1-2; Exhibit 5, p.3; and Exhibit 1, p.9).
16. Effluent limitations are not based solely on wastewater treatment
efficiency, but include the best control measures and practices economically
achievable, including process and procedure innovations, operation methods,
and other alternatives. (Exhibit 19, p.III-2).
17. The Shell East Foreland onshore production facility has a
diffused gas air flotation system for produced water treatment which has
been considered an exemplary system for the purpose of establishing effluent
limitations. (Exhibit 19, pp. VII-19, IX-7).
18. The record contains two data bases which were analyzed to determine
numerical effluent limitations for produced water. The EPA data base
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(known as "UIML data") is presented in the Draft Development Document.
The data base presented by Shell (known as "TAFC data" for Total Available
Flotation Cell data) includes data from the Shell East Forelands onshore
facility.
19. The two data bases in the record are composed of data collected
both by grab and composite samples. For purposes of statistical
analysis, grab sample data should be transformed to make it more representa-
tive of composite sample data since the NPDES permits are based on composite
sampling.
I/
20. The BRFL and TAFC data conform to a three parameter lognormal
A/
This data base consists of Brown and Root flotation units (BRFLs)
1 thru 41, with the exclusion of the following units for insufficient data.
BRFL unit# #of data points
18 3
19 3
20 3
21 2
22 3
31 5
35 0
36 2
40 1
41 1
Also excluded from the data base were the following points, for the reasons
noted. Where outlier is noted, this is with regard to a statistical test
based on the studentized maximum. (See Sarhan, A.E. and Greenberg, B.G. (eds.),
"Contributions to Order Statistics," (1962), John Wiley, New York.)
BRFL unit# ^points Reason
7 3 Outlier
8 1 Outlier
10 2 Outlier
11 5 Start up
27 4 Outlier
28 1 Outlier
38 15 Start up
4 Heater-treater malfunction
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21
y
distribution. The data bases were tested for lognormality by using a
y
goodness of fit test.
I!
21. A statistical analysis of both data bases representative of BPT
systems for treating produced water indicates that the following equivalent
values for oil and grease effluent limitations for produced water, using
composite sampling, are attainable: 48 mg/1 monthly maximum ("daily
8/
average") and 72 mg/1 daily maximum.
In determining the produced water effluent limitations set forth in
the initial decisions, the Regional Administrator rejected as "not
controlling" the proposed effluent limitations described in the Draft
Development Document (Exhibit 19) and the operating experience of oil and
water separators in the Gulf of Mexico (Exhibits 10 and 11). I believe
he should have given weight to both. While he is correct in stating that
Aitchison, J., and Brown, J.A.C., "The Lognormal Distribution," (1969),
Cambridge University Press.
y
Anderson, T. W., and Darling, D. A., "Test of Goodness of Fit," American
Statistical Association Journal, 49 (1954), 765-769.
II
Both data bases obeyed the same three parameter lognormal distribution,
with the parameters of the daily data being; T=10, log mean = 1.54 and
log standard deviation = .157. Thus the 99% confidence limit about the
mean was Max faaily) = 10 1.54+2.33X.157 -10. The monthly maximum was
attained by simulating concentrations from the above distribution, averaging
four values and applying the confidence limit methodology above.
8/
These limitations are based on four composite samples per month, where each
composite sample is the result of four grab samples on a given day. The terms
"monthly maximum" and "daily maximum" are defined, with respect to the foregoing
sampling scheme, as follows: (1) "monthly maximum" is the velye the monthly
average shall not exceed, and (2) "daily maximum" is the value /the dally
composite sample shall not exceed.
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22
the Draft Development Document is, in fact, only a "draft" and therefore
represents the then-current status of EPA efforts to establish effluent
guidelines for the oil and gas extraction industry, he dismissed too quickly
the vast amount of information and data collected therein. For purposes of
this proceeding, it represents the most comprehensive Agency analysis
of factors affecting the establishment of effluent limitations for pre-
guideline permits in the oil and gas extraction industry. While it may
be changed in some respects prior to its publication by the Agency in the
form of final effluent guidelines, considerable weight should have been
given to the contents of this document.
Similarly, I do not agree with the Regional Administrator that there
is no correlation between the Gulf of Mexico data and Cook Inlet data.
Although there are some apparent differences in waste characteristics, volume,
and other factors affecting treatability, I believe the initial decisions
are in error in failing to give weight to the Gulf data analysis in the record.
The evidence cited in the initial decisions as the basis for setting
25/50 effluent limitations for produced water is based on operating experience
in Cook Inlet, including Shell data collected during the first 8 months
of 1974 averaging less than 11 mg/1 and Atlantic Richfield data collected
during 1973 averaging less than 4 mg/1. While I cannot disagree with the
emphasis placed on analyzing Cook Inlet data, I am not convinced that the
pertinent Cook Inlet data were properly analyzed or that the Regional
Administrator considered all the pertinent Cook Inlet data available. The
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23
permittees point out in their peititon for review that out of a total of over
6,000 relevant data points (including 178 relating to Cook Inlet production
facilities), the initial decisions apparently rely upon only 79 data points
relating to the Shell and Atlantic Richfield production facilities.
The final decision in this proceeding concerning produced water
effluent limitations should be and is based upon a thorough statistical
analysis of relevant Cook Inlet data. Those results should be considered
in light of industry experience generally.
C. Upset Provision
The following findings and discussion pertinent thereto relate to the
issue of whether an upset provision should be included in the permits per-
taining to produced water treatment facilities and discharges, and, if so,
the form which an upset provision should take,
22. Control and treatment technology is subject to malfunction caused
by formation characteristics, improper operating procedures, equipment failure,
or start-up problems. An effective program to investigate the causes of
failure and to take corrective action can eliminate the majority of the
malfunctions and reduce high variability in effluent concentrations.
(Exhibit 19, p.1-2).
23. In determining systems representative of BPT, the Draft Development
Document excludes data obtained when treatment units were installed (start-up),
when chemical treatment rates were modified, and when significant equipment
maintenance was being performed. (Exhibit 19, p.IX-6).
24. Normal operation of oil production facilities includes producing,
drilling, reconditioning, acidizing, wire line operations, and other
recurring types of operation on or at an oil production facility.
(Exhibit 8, p.8).
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25. Spent acids and fracturing fluids usually move through the
production system and through the waste water treatment systems. The
presence of these wastes in the treatment system may cause upsets and higher
oil concentrations in the discharge water. (Exhibit 19, p.VII-47; Tr.191).
26. In determining systems representative of BPT, the Draft
Development Document includes data collected during normal operation, upset
resulting from well workovers, and other recurring operations. (Exhibit 19,
pp.IX-3, 6; Tr.192).
27. Upsets and high oil concentration in the waste water treatment
system may be quickly detected through the use of a phototester-type of
check. (Tr.156-57)
28. Programs for treating sulfate-reducing bacteria problems include
injection of bactericide into the system, which may be performed during
production. (Tr.1214).
29. All new waste treatment systems must be started and their operations
stabilized. During periods of "start-up" and "stabilization" new treatment
systems may operate at less than optimum efficiency. Start-up and
stabilization of new waste treatment systems have been taken into account
in the existing compliance schedule provision. Since most of the equipment
items needed to meet BPT requirements are "off-the-shelf" items with
which the oil and gas industry has had considerable experience, a 60-day
stabilization period following completion of construction is reasonable
and has been provided in the permit compliance schedules.
The terms and conditions of the permits may have the effect of
inhibiting the installation of new, improved technology because of start-up
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25
and stabilization problems. If necessary, the NPDES regulations provide
for the amendment of permits to allow for improvements 1n technology and
other changes as may be appropriate.
30. The efficiency of treatment systems representative of &PT will
fluctuate depending upon the volume and variations in the quality of the
influents. Upset factors or high variations in effluent concentrations
may, under certain circumstances, be an integral component of BPT. High
effluent concentrations caused by improper maintenance, careless operation,
or inadequate equipment are not inherent in BPT effluent limitations.
31. Low effluent concentration levels are not the only criterion for
systems representative of BPT. The equipment also must be reliable, easy to
maintain, free from major breakdown, and easy to operate.
32. Equipment malfunctions or failures likely to cause upsets can be
minimized through proper maintenance and operation. High effluent concentra-
tions do not necessarily reflect, but might suggest improper operating
procedures.
Preventive measures, as well as modifications in the process system
and pretreatment, are considered part of BPT. The effluent limitations for
produced water were derived from data obtained from facilities having a wide
range of maintenance programs, including those which were not exemplary.
Improvements in preventive maintenance should result in less variability in
effluent concentrations.
33. The record includes little evidence to indicate that the permittees
have fully explored or disclosed the various means available to "correct"
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upset conditions when they occur or to prevent their occurence. The terms
"upset" and "malfunction" are inadequately defined, and statements relating
to the duration of such conditions are broad and generalized.
34. In the absence of more detailed and persuasive documentation in
the record relating to equipment malfunctions, maintenance, and upsets,
and recognizing that the effluent limitations set forth herein are based on
data which was obtained during normal operations and Includes upset conditions,
periods of high effluent concentration, and drilling operations, there is
no justification, based on the evidence available, to Include an upset
provision in the permits pertaining to produced water facilities and
discharges.
As indicated above, I find the record cloudy and deficient on the
issue of upsets. The permittees have failed to articulate a clear
definition of what constitutes an "upset" condition. I understand the
term "upset" to mean, generally, any situation during which effluent
concentration limitations for a particular discharge are exceeded. The
causes of upsets at oil and gas production facilities apparently are
diverse and, at times, unpredictable. For that reason, I assume, the
permittees hesitate to codify specific events or situations which they
would consider as falling within their proposed upset provision. Obviously,
they are concerned that an upset might lead to a permit violation, and thus
expose them to civil penalties or criminal prosecution under the Act.
As stated in the findings set forth above, I can find no reasonable
basis on the record for adopting an upset provision as proposed by the
permittees. An open-ended upset provision, quite simply, would invite
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27
abuse and greatly complicate enforcement of the permit terms and
conditions. The burden on the EPA regional office charged with enforcing
the permits would be compounded. As presently formulated in the final
permits, the regional office has a difficult task ahead in monitoring the
permits, detecting probable violations, and exercising its enforcement
discretion. If the permittees' proposal were adopted, the regional office
would be obliged in each case to find that a particular event or situation
causing an upset was not beyond the reasonable control of the permittee
before initiating any enforcement proceeding. One can imagine that making
such a finding, when all the relevant facts are in the exclusive possession
of the permittee, would be an exceedingly difficult task. One can also
imagine that in most cases the entire enforcement proceeding would then
hinge on EPA being able to establish either negligence or intentional
misconduct on the part of the permittee as the cause of the permit violation,
I do not believe the Act contemplates putting that burden on the Agency.
I am less fearful than the permittees'appear to be that EPA's
regional enforcement offices will abuse or unreasonably apply their
enforcement discretion. I am, therefore, not convinced that any permit
provision which would have the effect of diminishing or curtailing the
Agency's enforcement responsibility and discretion would be in the best
interest of the nation's water pollution control program. At the same time,
I am not convinced that the permittees are unnecessarily or unlawfully
exposed to the possibility of prosecution for violations not sufficiently
set forth in the applicable law and regulations of the Agency.
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D. Bypassing Provision
The following findings and discussion pertinent thereto relate to
the issue of whether a more liberal bypass provision should be included in
the permits pertaining to produced water facilities and discharges, and,
if so, the form which a more liberal bypass provision should take, Only
those findings necessary to resolve points in controversy in the record
are included.
35. In addition to gravity separation and gas flotation for onshore
treatment of waste water, it is desirable to have some provision for handling
an upset condition (such as a receiving vessel) so that the waste water
can be treated at leisure. (Tr.78).
36. Existing treatment systems may be used to treat waste water
during start-up and stabilization of new treatment systems. (Exhibit 33,
p.22).
37. Storage vessels and holding pits are available at onshore oil
production facilities to retain waste water during upsets or other
situations which may cause high oil concentrations in the effluent. (Exhibit
3, p.22; Exhibit 6, p.2; Tr. 151, 193).
38. The Shell East Foreland production facility requires about 15
man-hours per month to maintain the deoiling equipment. There is a
capability to divert the effluent to temporary storage if concentrations
exceed effluent limits. Rapid test methods have been developed to assist
the operator in determining the quality of the discharge. (Exhibit 8, p.2;
Tr. 151).
39. The evidence presented in this proceeding does not disclose any
occasion involving repair or replacement of equipment when bypassing
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29
the treatment system at the Shell East Forelands facility was required,
even when major maintenance consisting of replacement of the skimmer
blades in the flotation unit recently was undertaken.
40. Cleaning scale from the Marathon Trading Bay facility heater-
treater is required to be performed every two months. There is no evidence
that bypass of the treatment system has been required during these cleaning
operations.
41. Preventive measures, as well as medications in the process system
and pretreatment, are considered part of BPT. The assumption that the
bypass prohibition in the existing final permits will encourage operators
to reduce maintenance of oil-water separation equipment is contrary to the
evidence, which shows that preventive maintenance activities do not require
bypassing the treatment system. The evidence shows that the majority of the
maintenance operations can be performed while the equipment is operating.
42. When replacement or repair of equipment is required, an alternative
to bypassing is to retain waste fluids for various lengths of time in
different kinds of storage vessels (tanks, lagoons, etc).
43. The permittees have not presented sufficient evidence in the
record to indicate that a more liberal bypass provision should be inlcuded
in the permits pertaining to produced water treatment facilities and
discharges.
44. The findings and discussion in the preceding section relating
to upsets, to the extent they affect considerations relating to bypassing,
are incorporated by reference in this section of the decision.
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As indicated above, I find the record confusing and deficient on the
issue of bypassing. The permittees have failed to articulate a clear
definition of "bypass" and the events or situations which, in their
judgment, may require bypassing. I understand the term "bypass" to
mean, generally, any situation where an effluent to be treated before
discharge is either wholly or partially routed around the waste treatment
facility and is thereby discharged to the receiving water untreated or only
partially treated. As with upsets, the events or situations which may lead
to a bypass are diverse. The permittees, therefore, I assume, hesitate to
specify exactly what events or situations might be regarded as falling
within a provision for more liberal bypassing of the treatment facilities.
Generally, such events or situations would be associated with maintenance or
malfunction of equipment.
The permittees contend that the existing permit provision prohibiting
bypass except where necessary to prevent loss of life or severe property
damage unnecessarily restricts their ability to perform maintenance
and repair of equipment. They contend, moreover, that the concept of BPT
inherently involves some provision for upset and bypass situations.
As stated in the findings set forth above, I am not persuaded that the
record shows a reasonable basis for liberalizing or expanding the existing
bypass provision contained in the final permits. Several alternatives
to bypassing are evident, including diversion to temporary storage tanks
or lagoons. In the unusual situation where these alternatives are not
adequate or feasible, some other provision can be made on an ad hoc basis
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31
in consultation with the EPA regional office. Where the only apparent
course of action is to shut down the facility and it is evident that damage
to the producing reservoirs would be likely to result, that particular
situation might be covered by the existing severe property damage exception
to the bypass prohibition clause. These situations are not so frequent
that it would impose an onerous burden on the permittee or the EPA regional
office to handle them on a case-by-case basis. Such an approach is
preferable to a relaxation of the bypass provision, which would invite
abuse and unduly complicate enforcement of the permit terms and conditions.
I am aware of the permittees' repeated assertions that they would
not intentionally bypass in any case other than where 1t is absolutely
necessary to perform maintenance and make repairs. I believe they.as
all responsible companies, would adhere to these assertions. Nonetheless,
I do not believe that the effect of a more liberal bypass provision—a
diminution of the Agency's enforcement responsibility and discretion--
would be in the best interest of the nation's water pollution control program.
E. Compliance Schedules
I am unable to determine on the record any basis for modifying the
compliance schedules set forth in the final permits issued by the Regional
Administrator, except to the extent necessary and appropriate to account
for the passage of time since the inception of the adjudicatory hearing,
which may have delayed the implementation of the requirements set forth
therein and in this final decision.
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III. CONCLUSIONS
Procedural and Jurisdictional flatters
1. Jurisdiction exists in this matter under Sections 301 and 402
of the Act (33 U.S.C.A. §i 1131 and 1342) and 40 CFR 125.36 et seq.
2. Issues of law certified to the Assistant Administrator for
Enforcement and General Counsel were not answered prior to the issuance of
the initial decisions, but because 7 of the 8 issues related to questions
of constitutional law which the General Counsel felt compelled not to
answer the Regional Administrator was justified in assuming the validity
and constitutionality of the regulations as a basis for the initial
decisions.
3. Permittees' objection relating to the finality of evidentiary
rulings by the Presiding Officer is hypothetical in nature and therefore
not in issue.
4. The initial decisions set forth sufficient findings of fact and
conclusions of law to perceive adequately the essential facts and law upon
which the decisions are based.
5. The NPDES permit regulations (40 CFR 125.36 et seq.), as written
and as applied to the permittees in this proceeding, meet all the
applicable requirements of the Administrative Procedure Act and the fifth
amendment to the U.S. Constitution.
6. The applicable standard for review of the initial decisions of
the Regional Administrator is whether the findings and conclusions
contained therein are supported by the record and are found not be arbitrary
and capricious.
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Permit Terms and Conditions
7. All evidence presented at the consolidated adjudlcatory hearing
must be considered in establishing effluent limitations for each permit.
8. The oil and grease effluent limitations concerning produced water
in the initial decisions (25/50) are not supported by the record and are
not consistent with effluent concentrations attainable through the
application of BPT.
9. The oil and grease effluent limitations concerning produced water
proposed by the permittees (68/100 for Marathon and Atlantic Richfield,
75/120 for Shell) are not supported by the record and are not consistent
with effluent concentrations attainable through the application of BPT.
10. Effluent limitations attainable by the application of BPT to
produced water discharges are 48 mg/1 monthly maximum ("daily average")
and 72 mg/1 daily maximum.
11. The record supports the conclusion of the Regional Administrator
that the permits should not include an upset provision pertaining to
produced water treatment facilities and discharges as proposed by the
permittees.
12. The record supports the conclusion of the Regional Administrator
that the permits should not include a more liberal bypass provision
pertaining to produced water treatment facilities and discharges as proposed
by the permittees.
13. The compliance schedules included in the final permits, adjusted
as may be necessary and appropriate to take into account any delays in
implementation due to the pendency of this proceeding, are affirmed.
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14. This decision is uniformly applicable to the three permittees
and production facilities involved in this consolidated proceeding.
15. This decision is based solely on the record presented and other
considerations relevant to the record of this proceeding, as provided in
40 CFR 125.36(n)(12).
The Regional Administrator, Region X, shall forthwith modify the
final NPDES permits subject to this proceeding to conform with this
decision.
Dated: September 25, 1975
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BEFORE THE ADMINISTRATOR
U. S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C.
IN THE MATTER OF: ) NPDES Appeal NO. 75-8
National Pollutant Discharge )
Elimination System )
) Notice Denying Petition For Review
Permits For ) Of Decisions Of The Regional
) Administrator, Region X
Orca Cannery )
(Permit Nos. AK-000030-2 )
and AK-002372-8) )
New England Fish Company, )
)
Permittee.)
On September 2, 1975, New England Fish Company("Permittee")
transmitted a petition for review of a decision of the Regional
Administrator, Region X, issued on June 2, 1975, denying Permittee's
request for an adjudicatory hearing and a decision of the Regional
Administrator, Region X, issued on August 26, 1975, denying Permittee's
request for reconsideration of its prior request for an adjudicatory hearing.
The petition recites that on January 3, 1975, Permittee initially
filed a request for an adjudicatory hearing, following the issuance of
final permits for the Orca Cannery, Cordova, Alaska, On December 20, 1974.
That request noted that the permit requires screening of seafood waste
before discharge from Permittee's facility after July 1, 1977, but that a
similar facility (Wards Cove Packing Company, Ketchikan) "located in similar
ocean flow condition and also near a town declared to be non-remote" had
been granted a permit requiring only grinding and controlled discharge.
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The January 3, 1975, request stated that these similarities indicate
the Orca plant's permit should be revised to require grinding with
controlled discharge through June 30, 1979.
The January 3, 1975, request was denied on the ground that the
promulgated effluent guideline applicable to "this non-remote facility"
requires screening or an equivalent before discharge, and thus the
request did not set forth material issues of fact relevant to the
question of whether a permit should be issued, denied, or modified.
In its subsequent request for reconsideration, Permittee asserted
that the definition of "non-remote" (i.e., "... located in population
or processing centers including but not limited to Anchorage, Cordova,
Juneau, Ketchikan, Kodiak and Petersburg . . .") is not sufficiently
precise, such that EPA is or should be required to make a factual determination
as to whether Permittee's Orca facility is, in fact, non-remote. Permittee
points out that the Orca Cannery is not located in the heart of Cordova,
but is outside "the population and processing center of Cordova and is,
thus, a remote facility."
The request for reconsideration was denied on the ground that it
failed to disclose any matter that was not considered at the time of
the original denial.
It is clear from the Regional Administrator's original denial of
the request for an adjudicatory hearing that he determined the Orca
facility to be "non-remote," in fact, pursuant to the applicable guideline?
Permittee has not submitted sufficient information to indicate that the
Regional Administrator was incorrect in making that determination or that
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the matter involves complex factual issues. There is no basis to
conclude that an adjudicatory hearing is required to determine what
appears to be a very narrow issue of fact.
Accordingly, review of the decisions of the Regional Administrator
denying Permittee's requests for an adjudicatory hearing is hereby
declined.
Michael K. Glenn
Chief Judicial Officer
Dated: September 29, 1975
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BEFORE THE ADMINISTRATOR
U. S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C.
IN THE MATTER OF: )
National Pollutant Discharge ) NPDES A^eal No' 75~9
Elimination System )
) Docket No. PA-AH-0058
Permit For )
Bethlehem, Pennsylvania Plant
(Permit No. PA 0011177) )
Bethlehem Steel Corporation, )
Permittee. )
DECISION OF THE ADMINISTRATOR
On September 3, 1975, Bethlehem Steel Corporation ("Permittee")
filed a petition for review of a decision issued on August 21, 1975,
by the Regional Administrator, Region III in the above-captioned
proceeding.
The petition recites that on December 31, 1974, the Regional
Administrator, Region III, issued a National Pollutant Discharge
Elimination System (NPDES) permit for Permittee's Bethlehem,
Pennsylvania plant, following a public hearing held on December 13,
1974. At the hearing, Permittee proposed a compliance schedule for
the completion of some 22 projects involved in designing, purchasing
and installing facilities required to meet the permit effluent
limitations, which called for the completition of Phase I by January 1,
1979, and Phase II by July 1, 1979. The permit issued on December 31,
1974, however, requires that final permit conditions be met no later
than July 1, 1977.
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On January 16, 1975, Permittee requested an adjudicatory hearing
on the following issue:
"May the Environmental Protection Agency
establish an effective date for final
permit conditions later than July 1,
1977 where final permit conditions are
based upon the best practicable control
technology currently available and on
water quality standards."
On May 29, 1975, the foregoing question was referred to the
General Counsel of EPA as a certified issue of law, pursuant to 40 CFR
125.36(m)(3). The General Counsel concluded, in a decision issued on
July 24, 1975, that Section 301 of the Federal Water Pollution Control
Act, as amended (the "Act"):
". . . clearly requires the achievement, by July 1,
1977, of effluent reductions based on the more
stringent requirements of either section 301(b)-
(1)(A) or 301(b)(l)(C) of the Act. The Administrator
has no discretion to extend the date of compliance."
The August 21, 1975, decision of the Regional Administrator, Region III,
adopted the conclusion of law decided by the General Counsel and found no
factual or legal question remaining to be resolved in this proceeding.
Accordingly, permittee's requests to modify the permit and/or convene an
adjudicatory hearing were denied. The subject petition for review of the
Regional Administrator's decision was filed thereafter within the prescribed
10 day period.
Permittee takes exception to the conclusion of the General Counsel
(on the same grounds argued in its brief submitted to the Office of General
Counsel in connection with the issuance of the General Counsel's decision) in
the following particulars: (1) the General Counsel's decision addresses
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the "issue" of whether the effluent limitations in the permit were based
on effluent guidelines, proposed guidelines, or water quality standards,
which Permittee states is not relevant to the issue in controversy, i.e.,
whether the Administrator may extend the July 1, 1977, compliance date
contained in the Act; (2) the General Counsel's decision suggests that
Permittee is challenging the effluent guidelines and the dates for
compliance set forth therein, rather than the compliance date of July 1,
1977, as set forth in the Act, which they contend is properly reviewable
in an adjudicatory hearing since "the compliance date is a condition in
the permit as a consequence of the Act and not as a consequence of regulations
. . ."; and (3) the General Counsel's decision does not contain an analysis
of the legislative history of the Act to determine whether Congress intended
that the Administrator have discretion to extend compliance dates for
final compliance beyond July 1, 1977. In summary, Permittee contends that
the July 1, 1977, compliance date set forth in the Act "is merely an
interim date set by Congress for achieving the ultimate objectives and
goals by 1983 and 1985," and, as such, may be extended by the Administrator
upon a proper showing of inability to comply by that date.
I have examined the language of the Act, as well as its legislative
history, and am unable to find any basis to disagree with the conclusion of
the General Counsel that, as a matter of law, the Administrator does not
have authority or discretion under the Act to extend the July 1, 1977,
deadline. The fact that the General Counsel's decision may have addressed
other issues which Permittee does not consider relevant to the central issue
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raised, does not alter the fact that the central issue—the mandatory
July 1, 1977, deadline—also was decided.
That issue being the only matter for which review has been
requested by the Permittee, I see no need to prolong this proceeding by
requesting additional briefs and argument on possible varying
interpretations of the Act which might be offered.
Accordingly, the Decision and Order of the Regional Administrator,
Region III, which relied upon the aforementioned decision of the General
Counsel, is hereby affirmed and the subject permit, as originally issued.
shall take effect immediately with the issuance of this decision.
Rus:
ell E. Train
Dated: September 30, 1975
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BEFORE THE ADMINISTRATOR
U. S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C.
NPDES Appeal No. 75-4
N.P.D.E.S.
Docket No. AHAL 002
IN THE MATTER OF:
National Pollutant Discharge
Elimination System
Permit For
U. S. Pipe and Foundry Company,
(Permit No. AL0003247)
Permittee.
DECISION OF THE ADMINISTRATOR
This is an appeal pursuant to 40 CFR 125.36(n), et seq. from an
initial decision dated April 21, 1975, in the above styled proceeding.
The initial decision was rendered by Administrative Law Judge Thomas B.
Yost, acting pursuant to a delegation of authority from the Regional
Administrator, Region IV. This final decision concerns two issues
for which review by the Administrator was granted in a Notice issued by
the Chief Judicial Officer on June 18, 1975, in response to petitions
for review filed by the Alabama Conservancy, Alabama Wildlife Federation,
Bass Angler Sportsman's Society, and several other citizens' groups
(hereinafter referred to collectively as the "Alabama Conservancy et al.")
on May 12, 1975, and by the State of Alabama, acting through its Attorney
General, on May 20, 1975.
The permit under review concerns a manufacturing facility of U.S.
Pipe and Foundry Company (hereafter lfU.S. Pipe") known as the North
Birmingham Complex, which consists of five major manufacturing operations:
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a by-product coke plant, a chemical plant, a blast furnace plant, a
mineral wool plant, and a cast iron pipe plant. Wastewater from the
various plants is discharged to Five Mile Creek, a tributary of the
Black Warrior River. The combined effluent includes suspended solids,
BOD, COD, oil and grease, ammonia, phenols, and various heavy metals
and other substances.
A brief chronology of events related to this proceeding may be
helpful. On June 30, 1971, U.S. Pipe filed an application for a
waste water discharge permit for its Birmingham facility under the
then-existing Federal Refuse Act Permit Program. Thereafter, while the
permit application was pending, EPA initiated suit under the Refuse Act
against U.S. Pipe and other Birmingham, Alabama area dischargers. From
February 1972 through January 1973, EPA and the Department of Justice
engaged in settlement negotiations with U.S. Pipe, resulting in a
consent decree issued by the U.S. District Court for Alabama on January 5,
1973. The consent decree set forth specific effluent limitations,
monitoring requirements, and compliance schedules. It was recognized in
the consent decree that U.S. Pipe, subsequent to the entry of the
decree, would be required to apply for and obtain a National Pollutant
Discharge Elimination System (hereafter "NPDES") permit under Section
402 of the 1972 Amendments to the Federal Water Pollution Control Act,
(the "Act") and the decree specifically provided that such NPDES
permit will "to the fullest extent possible ... be consistent with
the applicable provisions of this Decree."
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On November 15, 1973, public notice of U.S. Pipe's application for
an NPDES permit was issued. On February 7, 1974, a public hearing on
the application was held in Birmingham. On April 8, 1974, Region IV
issued a final NPDES permit to U.S. Pipe. Thereafter, the Alabama
Conservancy ejt al_. and the State of Alabama filed requests for an
adjudicatory hearing. A public notice of the hearing was issued on
June 7, 1974 and, thereafter, U.S. Pipe's request to become a party to
the proceeding was granted.
In addition to six issues raised by the parties in their requests
for an adjudicatory hearing, four issues of law were identified and
certified to the Assistant Administrator for Enforcement and General
Counsel (hereafter "General Counsel") by the Administrative Law Judge,
pursuant to EPA regulations published on July 24, 1974. Following a
prehearing conference, the adjudicatory hearing was held in Birmingham
on December 3-6, 1974. On December 30, 1974, the General Counsel issued
a decision on the certified issues of law. On March 14, 1975, the
Administrative Law Judge certified the record of the hearing to the
Regional Administrator, Region IV, and on April 4, 1975, the Regional
Administrator designated Administrative Law Judge Yost to make the
initial decision in this proceeding. As noted above, the initial
decision was rendered on April 21, 1975, and this appeal ensued thereafter.
Among the issues of law decided by the General Counsel and by the
Administrative Law Judge which are not under review in this appeal are
the following:
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1. Whether the 1973 consent decree is binding on the Agency in
its consideration of the appropriate limitations, conditions, and
terms to be imposed in the NPDES permit to be issued to U.S. Pipe?
This issue was decided in the affirmative, subject only to an
assessment of comments received pursuant to Sections 401 and 402(a)(l)
of the Act.
2. Whether the permit complies with the toxic pollutant standard
requirements of Section 307(a)(l) of the Act? It was decided that the
permit properly includes conditions limiting or prohibiting the discharge
of toxic pollutants prior to the promulgation of toxic pollutant
standards and a provision for automatic modification of the permit
upon promulgation of toxic pollutant standards under Section 307(a^
3. Whether the permit complies with the goals specified in
Section 101(a)(2) of the Act, establishing "an interim goal of water
quality which provides for the protection and propagation of fish,
shellfish, and wildlife and provides for recreation in and on the water
be achieved by July 1, 1983?" (Referred to sometimes as the "1983 goal"
or the "fishable and swimmable waters" goal.) It was decided that the
phased requirements contained in the permit'applicable until its
expiration in 1979 satisfy the requirements of Section 101(a)(2) and
other requirements of the Act.
4. Whether Section 301(b)(l)(C) of the Act requires the
achievement of effluent limitations more stringent than "best
practicable control technology currently available" (hereafter referred
to as "BPT") if such limitations are necessary to implement water quality
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standards established pursuant to the Act? This issue was decided in
the affirmative. The issue of when such more stringent limitations
must be complied with is one of the issues under review discussed
below.
The two issues under review in this appeal are the following:
1. Are the appropriate water quality standards and effluent
limitations to be applied those which were in effect at the time of
the initial permit issuance or those which were promulgated after the
permit was issued but prior to final action following the adjudicatory
hearing?
2. Does Section 301(b)(l)(C) of the Act require that permit
limitations be established such that the permittee is required to meet
water quality standards promulgated pursuant to Section 303 of the Act
by 1977, or only that such limitations implement water quality standards
promulgated pursuant to Section 303 by 1977?
Appropriate Hater Quality Standards and Effluent Limitations
The 1972 Act for the first time established Federal effluent
standards for industrial and municipal waste water discharges to the
waters of the United States. This was a departure from previous Federal
legislation which had required standards only for the quality of the
receiving waters. Prior Federal legislation led to the establishment
of receiving water quality standards by the individual States. The
State/Federal water quality standards are retained in the 1972 Act, and
provide the basis for water pollution controls which are more stringent
than those necessary to meet the new effluent standards. Thus, the Act
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envisages a dual basis for determining effluent limitations to be
included in NPDES permits for point source discharges--(l) where
water quality standards and other State or Federal requirements will not
be violated, permit effluent limitations for these stream segments or
water bodies (so-called "effluent-limited segments") are to be based
on the technology standards set forth in Section 301 (b) of the Act,
i.e. for industrial point sources, "the best practicable control
technology currently available," to be achieved not later than July 1,
1977, and "the best available technology economically achievable," to
be achieved not later than July 1, 1983; and (2) where necescary to meet
water quality standards, treatment standards, or schedules of
compliance established pursuant to any State law or regulations or any
other Federal law or regulation, or required to implement any applicable
water quality standard established pursuant to the Act, any more
stringent permit effluent limitations for these stream segments or water
bodies (so-called "water quality-limited segments") are to be based on the
requirements of these other laws, regulations, and standards.
The applicability of these tests for determining the effluent
limitations to be included in the U.S. Pipe permit is somewhat confused
and complicated by several factors including, most important to the
issues being considered herein, a series of events relating to the water
quality standards of the State of Alabama.
Prior to the occurrence of any of the actions or events pertinent to
this permit, the water quality standard for Five Mile Creek, established
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by Alabama pursuant to the 1965 Federal water pollution law, was
"Treated Waste Transportation," which fixed criteria for the reduction
of Biological Oxygen Demand ("BOD"). The consent decree was adopted
on January 8, 1973, when this standard was in effect. On September 17,
1973, Alabama adopted a new standard for Five Mile Creek, designated
"Fish and Wildlife as a goal." The permit was issued on April 8, 1974,
when this standard was in effect. On November 26, 1974, following its
earlier disapproval of the "Fish and Wildlife as a goal" standard, EPA
published its own "Fish and Wildlife" standard for all streams in
Alabama.
The Alabama "Fish and Wildlife as a goal" standard in effect at the
time of the initial permit issuance did not specify minimum concentrations
of particular pollutants, but required only that the industry meet BPT by
July 1977 and BAT by July 1983. At that time, proposed Federal effluent
guidelines for the iron and steel industry, although not binding in a
legal sense, were available for consideration by the regional EPA office
in preparing the permit.
The issue presented here is not whether the permit requires U.S.
Pipe to attain BPT effluent limitations by July 1, 1977 (thus meeting
the "Fish and Wildlife as a goal" standard as well), but whether the permit
should require U.S. Pipe to meet more stringent limitations which would
apply under the subsequently adopted "Fish and Wildlife" standard. For
the following reasons, I find that the Administrative Law Judge was
correct in concluding that permit effluent limitations should be based
on water quality standards in effect at the time of the initial permit
issuance.
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As a matter of general policy in the administration of a
nationwide permit system, I agree with the arguments put forward by
EPA staff counsel and U.S. Pipe that to allow permit limitations and
conditions to change according to a "floating" standard or guideline
during the pendency of a permit review proceeding would be highly
disruptive and counter-productive. The Act clearly contemplates that
NPDES permits will be issued "prior to the taking of necessary
implementing actions" relating to requirements under 301, 302, and other
sections of the Act. In such instances, the Act provides that permit
conditions will be determined by the Administrator "as necessary to carry
out the provisions of this Act." I recognize that permit review
proceedings may consume many months, during which standards and guidelines
for determining permit conditions may change (or take on greater
specificity). These changes may mean that if the permit was being
initially issued today, the conditions might be either more lenient or
more stringent. It is not a one-way street.
My view of the adjudicatory hearing process is that it is a
procedure for reviewing the record and the basis for final permits issued
by the Agency to determine whether errors or omissions have occurred
in the preparation of the final permits. The Administrator's review
must be based on the record of the adjudicatory hearing and other
considerations relevant to the record of the proceedings. Although matters
contested in an adjudicatory hearing do not become final for purposes
of judicial review until the Administrator has acted on an appeal, the
Administrator's review of the original action taken by the Regional
Administrator should be based on the standards and guidelines in
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existence at the time the original action was taken, and thus, to that
extent, finality must be accorded the original action taken. To
conclude otherwise would mean that the Administrator would become the
sole and final arbiter of every permit limitation where a
party (EPA included) might want to gamble on the likelihood of an
intervening change in the applicable standards or guidelines. Such a
result would be inimical in the extreme to the nation's water pollution
control program. As a matter of policy, EPA should do its utmost to
avoid problems associated with the "moving target" criticism so often
asserted by those subject to the regulatory requirements of this and
other government agencies. The standards and guidelines for the
preparation of NPDES permits must be fixed at some point in time so
permit terms can become final and pollution abatement can proceed. I
believe the proper point in time for fixing applicable NPDES standards
and guidelines is when the Regional Administrator initially issues a final
permit.
Aside from "the policy considerations stated above I do not believe, as
a matter of fact or law, any different conclusion can be reached in this
proceeding. (Part of the basis for this conclusion is discussed in the
following section of this decision.) At the time the consent decree was
entered on January 5, 1973, the guidance available to the Agency for
determining discharge limitations included a preliminary Guidance Document
for the iron and steel industry and a state water quality classification
for Five Mile Creek of "Treated Waste Transportation." As noted above,
the terms of the consent decree were binding to a considerable extent
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in establishing the conditions of the final NPDES permit. At the time
the permit v/as initially issued on April 8, 1974, further guidance
available to the Agency for determining permit effluent limitations
included the proposed effluent guidelines for the iron and steel
industry and a state water quality standard for Five Mile Creek of
"Fish and Wildlife as a goal," calling for the application of BPT
by July 1, 1977 and BAT by July 1, 1983. This standard was approved
by EPA on January 29, 1974, even though the standard contained no
description of what criteria would be applicable to the standard. On
April 19, 1974 (eleven days after the issuance of the permit to U.S.
Pipe), Alabama published an amendment to the standard setting forth a
description of "Fish and Wildlife as a goal" as consisting of minimun
treatment requirements established by Section 301 of the Act (BPT by
1977, BAT by 1983). On April 30, 1974, EPA notified Alabama that
the "goal" classification was not consistent with EPA policy or the
requirements of the Act and thereafter, on July 17, 1974, EPA published
proposed regulations classifying all streams in Alabama as "Fish and
Wildlife." These regulations, which were promulgated on November 26,
1974, set forth the minimum water quality criteria necessary to meet
the requirements of the Act to protect public health or welfare and
enhance the quality of the nation's waters, viz, fish and wildlife and
secondary contact recreation.
The State of Alabama argues that EPA never "assented to or accepted"
the standard of "Fish and Wildlife as a goal," or it did so only on the
assumption that it was identical with the standard of "Fish and Wildlife."
By subsequently repudiating the "goal" standard, Alabama contends, "EPA
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made it clear that its intention all along was that the relevant streams
be classified 'Fish and Wildlife1 and that the 'Goal' standard was
inconsistent with EPA policy." Even giving a generous benefit of
doubt to the Agency's staff, I cannot agree with these assertions. As
the record stood at the time the permit was initially issued, the
Regional Administrator's determination was consistent with the consent
decree, the then-existing Alabama stream standard, and EPA policy.
Compliance with Section 303 Water Quality Standards
As stated above, it appears that the final permit issued by the
Regional Administrator in April 1974 was consistent with the consent
decree, the then-existing Alabama stream standard, and EPA policy. It
is necessary to determine, as well, whether the final permit conforms
with the requirements of the Act, particularly Sections 301(b)(l)(C) and
303.
Section 301(b)(l)(C) requires, in pertinent part, that:
"There shall be achieved...not later than July 1,
1977, any more stringent limitation [than "best
practicable control technology currently available"],
including those necessary to meet water quality
standards, treatment standards, or schedules of
compliance, established pursuant to any State law or
regulations (under authority preserved by Section 510)
or any other Federal law or regulation, or required to
implement any applicable water quality standard
established pursuant to this Act." (Emphasis supplied.)
In construing this provision, EPA's regional staff argued and the
Administrative Law Judge decided that (1) the consent decree in the Refuse
Act proceeding against U.S. Pipe established requirements under "any
other 'Federal law or regulation," which must be met by July 1, 1977,
but that (2) if it is not appropriate to meet standards established under
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Section 303 by 1977, "there have to be requirements in the permit that
will lead to the meeting of the standards or in other words to
implement such standards."
Drawing on the foregoing distinction between "meet" and "implement,"
the Administrative Law Judge concluded that the permit issued to U.S.
Pipe "does in fact satisfy the provisions of [Section 301(b)(l)(C)],
in so far as it requires the meeting of water quality standards at a
date later than July 1, 1977, but contains provisions which demonstrate
that the Fish and Wildlife standard is being implemented by 1977 even
though such standard will not be met until 1979."
Reasonable people can differ on the practical and technical
distinctions between the two key words used in this section of the law. I
am persuaded that the distinction is significant. The word "implement,"
as used in the statute, is a transitive verb which I interpret as meaning
to carry something into effect over a period of time, as opposed to the
actual realization or fulfilment of an objective. "Implement," as used in
some contexts, may mean to fulfil or satisfy a requirement or objective,
but such a meaning is more clearly indicated by the use of the word
"meet," as in the first part of Section 301 (b)(l)(C). "Meet" is
commonly understood as meaning to comply with or to fulfil. The
experience of this Agency in administering various pollution control
laws is that "implementation" commonly means putting programs or
requirements into effect, as required by law, which then leads to future
attainment, achievement, accomplishment, meeting, or compliance with the
standards, objectives, and goals of the applicable law.
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Thus, I agree with the conclusion of the Administrative Law Judge
that Section 301(b)(l)(C) means that water quality standards
established pursuant to Section 303 must be "implemented" (i.e. put into
effect) by July 1, 1977, but that such standards need not necessarily
be "met" by such date.
The Administrative Law Judge found that,
"The effluent limitations required by the permit to
be met by July 1, 1977, are consistent with the State
adopted water quality standards of Fish and Wildlife
as a goal as defined above.
The effluent limitations required by the permit to be
obtained by 1979 are consistent with the achievement
of Fish and Wildlife standards as that term is
understood and applied by the Environmental Protection
Agency and, therefore, complies with provisions of
Section 301(b)(l)(C) in that such effluent limitations
implement applicable water quality standards established
pursuant to this Act as opposed to those water quality
standards established pursuant to State law."
I find no basis on the record to review either of the above findings of
fact. These findings, together with other findings set forth in the
Initial Decision pertinent to the resolution of the issues discussed
above, are adopted and incorporated by reference in this decision.
CONCLUSIONS
1. Jurisdiction exists in this matter under Sections 301 and 402 of
the Act (33 U.S.C.A.ii 1311 and 1342) and 40 CFR 125.36 et seq.
2. The initial decision sets forth sufficient findings of fact and
conclusions of law to perceive adequately the essential facts and law
upon which the decision is based.
3. Findings of fact and conclusions of law set forth in the initial
decision which are not reviewed and discussed in this final decision are
not clearly erroneous or an exercise of discretion or policy which the
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Administrator should review and, accordingly, such findings and conclusions
are hereby affirmed.
4. The appropriate water quality standards and effluent limitations
to be applied to the subject permit are those which were in effect at the
time of the initial permit issuance on April 8, 1974.
5. Water quality standards established pursuant to Section 303 of
the Act must be implemented or put into effect by July 1, 1977, but such
standards need not necessarily be met or fully complied with by such date.
6. The requirements of Section 301(b)(l)(C) of the Act are satisfied
by the limitations and conditions set forth in the permit issued on April 8,
1974 to the U.S. Pipe and Foundry Company for its North Birmingham Complex.
ORDER
The inital decision of Administrative Law Judge Yost, rendered on
April 21, 1975, is affirmed. The subject permit issued to the U.S. Pipe
and Foundry Company on April 8, 1974, is consistent with the requirements
of the Federal Water Pollution Control Act, as amended, and is hereby
ordered to be in full force and ei
ussell E. Train
Dated: October 10, 1975
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BEFORE THE ADMINISTRATOR
U. S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C.
IN THE MATTER OF: )
j NPDES Appeal No. 75-4
National Pollutant Discharge ) (Modifications)
Elimination System ) N.P.D.E.S. Docket
) No. AHAL 002
Permit For )
)
U.S. Pipe and Foundry Company, )
(Permit No. AL0003247) )
Permittee. )
MODIFICATIONS TO DECISION
OF THE ADMINISTRATOR
On October 10, 1975, I issued a final Decision pursuant to 40
CFR 125.36(n) on appeal from an initial decision dated April 21,
1975, in the above-styled proceeding. In that Decision, I affirmed
the initial decision of the Regional Administrator,.Region IV,
concerning the issuance of an NPDES permit to a manufacturing facility
operated by U.S. Pipe and Foundry Company and known as the North
Birmingham Complex in Alabama.
My October 10 Decision addressed two issues raised by the parties
to that appeal, namely:
(1) Are the appropriate water quality standards and effluent
limitations to be applied those which were in effect at the time of
the initial permit issuance or those which were promulgated after
the permit was issued but prior to final action following the
adjudicatory hearing?
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(2) Does section 301(b)(l)(C) of the Act require that permit
limitations be established such that the permittee is required
to meet water quality standards promulgated pursuant to section 303
of the Act by 1977, or only that such limitations implement water
quality standards pursuant to section 303 by 1977?
As to the former issue, I concluded that the appropriate water
quality standards and effluent limitations to be applied are those
which are in effect at the time the permit is initially issued;
in the case at hand, those which were in effect on April 8, 1974.
As to the second issue, I concluded that water quality standards
established pursuant to section 303 of the Act must be implemented
by July 1, 1977, but such standards need not necessarily be met or
fully complied with by such date.
On further review of the findings and rationale set forth in
the Decision I have determined that certain statements made in the
text of the Decision were incorrect. Specifically, I am persuaded
that the portions of the Decision which are based on the assumption
that the water quality standards in effect on April 8, 1974 required
nothing more than the achievement of "best practicable technology"
(hereafter "BPT") by July 1, 1977, and "best available technology"
(hereafter "BAT") by July 1, 1983, and that such standards, as so
stated, had been approved by EPA Region IV, are incorrect.
The modifications set forth herein are made pursuant to a
general doctrine of administrative law that an agency is free to
change its mind, or modify its findings, at least for the period
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during which the agency's decision is not yet final or is
still subject to judicial review.
A more complete review of the facts surrounding the State
of Alabama's adoption of the "Fish and Wildlife as a goal" use
classification in September 1973, the State's notification of its
equation of this classification with BPT and BAT on April 19,
1974 (11 days after the issuance of the subject permit), and the Agency's
subsequent disapproval of this standard and proposal and promul-
gation of water quality standards for the State of Alabama,
has led me to the conclusion that at the date of issuance of this
permit EPA did not construe the "Fish and Wildlife as a goal"
standard as being identical with BPT and BAT. Rather, it seems to
me, the most reasonable interpretation to place upon the succession
of events from September 17, 1973 through November 26, 1974, is that at
the date of permit issuance (April 8, 1974) the EPA Regional Office
believed that the approved water quality standard ("Fish and
Wildlife as a goal") required attainment of those criteria normally
associated with a "Fish and Wildlife" use classification.
The subject permit is consistent with the water quality
standards as so construed, since it requires attainment of
limitations on pollutants generally associated with a fish and
wildlife standard by 1979. The permit is also consistent with my
prior interpretation of the Act, since the existence of the consent
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decree makes it appropriate for the subsequently adopted
Alabama water quality standards to be met by 1979, rather than
1977.
Thus, I affirm the conclusion of the October 10, 1975
Decision, since the permit is consistent with the Act as
interpreted by that Decision. For the sake of clarity and
correctness in the findings and rationale set forth therein,
however, certain portions the Decision are modified, as follows:
1. On page 7 of the Decision, the following language is
deleted:
Lines 13-14: ". . . but required only that the industry
meet BPT by July 1977 and BAT by July 1983.", thus
ending the sentence beginning at line 11 with the
word "pollutants."
Lines 19-20: ". . . (thus meeting the "Fish and
Wildlife as a goal" standard as well). . .", thus
eliminating the parenthetical clause in its entirety.
2. On page 10 of the Decision, the following language is
deleted:
Lines 6-7: "... calling for the application of BPT by
July 1, 1977 and BAT by July 1, 1983.", thus ending the
sentence beginning at line 1 with the word "goal."
3. On page 11 of the Decision, the following language is
deleted:
Lines 3-7: "Even giving a generous benefit of doubt to
the Agency's staff, I cannot agree with these assertions.
As the record stood at the time the permit was initially
issued, the Regional Administrator's determination was
consistent with the consent decree, the then-existing
Alabama stream standard, and EPA policy."
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The following language is substituted for the foregoing
deletion following the sentence ending at line 3:
"It appears from the record of events preceding and
following the issuance of the subject permit that EPA,
at the time the subject permit was initially issued,
understood the "Fish and Wildlife as a goal" standard
to require attainment of those criteria normally associ-
ated with a "Fish and Wildlife" use classification,
rather than the subsequently described "criteria" of
BPT by July 1977 and BAT by July 1983. The
Administrative Law Judge found the terms of the permit
to be consistent with the consent decree and the attainment
of Fish and Wildlife standards by 1979."
4. On page 11 of the Decision, lines 9-11 are modified to
read as follows:
"As stated above, it appears that the final permit issued
by the Regional Administrator in April 1974 was consistent
with the consent decree and the then-existing Alabama
stream standard, as understood by EPA at the time the
permit was issued."
5. On page 13 of the Decision, lines 7-10, quoting from
Finding of Fact No. 10 of the initial decision, are deleted. In
addition, on page 13, lines 20-23 are modified to read as follows:
"I find no basis on the record to review the above finding
of fact. This finding, together with other findings set
forth in the Initial Decision not inconsistent with this
Decision, is adopted and incorporated by reference in this
Decision."
In view of the foregoing corrections and modifications, it is
apparent that Findings of Fact No. 6 and 10 of the initial decision of
the Administrative law Judge are in error, since at the time the
permit was issued the State of Alabama had not issued its description
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of "Fish and Wildlife as a goal" as being the application of BPT
by July 1977 and BAT by July 1983, and did not do so until 11
days after the subject permit was issued. Similarly, Conclusion
of Law No. 6 of the initial decision is in error insofar as it
concludes that at the time the permit was issued Alabama law
associated the "Fish and Wildlife as a goal" standard with meeting
BPT.
Accordingly, the Decision of the Administrator dated October 10,
1975, is modified as set forth herein.
Dated: December 9, 1975
Rusfeell E. Train
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BEFORE THE ADMINISTRATOR
U.S. ENVIRONMENTAL PROTECTION AGENCY
NASHINGTON, D. C.
IN THE MATTER OF: ) NPDES Appeal NO. 75-14
National Pollutant Discharge )
Elimination System ) Notice Denying Petition for Stay
) Pending Judicial Review or, in the
Permit for ) Alternative, for Administrative
) Review and Stay Pending Administrative
Dyecraftsmen, Inc. ) Review.
(Permit No. MA0000612)
Taunton, Massachusetts
Permi ttee
On October 15, 1975, Dyecraftsmen, Inc. (hereinafter
"Dyecraftsmen" or "company") transmitted to the Administrator of
the Environmental Protection Agency (EPA) a petition requesting
the Administrator to stay the effect of Part I, Section B(l)(b)
of Permit MA0000612, issued by the EPA Regional Administrator,
Region I, pending judicial review of the permit. In the alternative,
Dyecraftsmen requested that the Administrator review the October 9,
1975, decision of the Regional Administrator denying Dyecraftsmen's
request for an adjudicatory hearing, and stay the effect of the
permit pending such administrative review, pursuant to 40 CFR
§125.36(n).
Dyecraftsmen's petition sets forth the following factual
background. The Regional Administrator issued a permit to
Dyecraftsmen on August 19, 1975, to be effective 30 days later
but to expire 30 days from the effective date. The permit was
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of short duration because it required Dyecraftsmen to Connect
into the City of Taunton, Massachusetts sewercge system, thus
terminating its direct discharge of pollutants into the Mill
River. Dyecraftsmen filed a request, later amended, for an
adjudicatory hearing which was denied by the Regional Administrator
on October 9, 1975.
The principal objections of Dyecraftsmen to the permit,, and
the issues it sought to have adjudicated, grow out of the company's
disagreements with the City of Taunton over its ordinances and
rate structure governing the use of the sewer system. Dyecraftsmen
alleges that the city's ordinances and rates assume that (1) the
company uses more water than it does and (2) its wastes are more
toxic than they in fact are (due to pretreatment practices of the
company). Moreover, the company submits that the rates are from
+
two to three times higher than those which would be levied by
towns of comparable size. Dyecraftsmen is presently negotiating
with the city for appropriate relief, but it believes more
time is needed for such negotiations and does not want the permit
to require termination of its direct discharge until it has
resolved its problems with the city. It sought to question in the
adjudicatory hearing whether the permit allowed sufficient time to
complete these negotiations.
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In denying the request pursuant to 40 CFR s!25.36(c), the
Regional Administrator stated that the company had made physical
connection of its pretreatment facilities with the city sewer
system prior to the issuance of the permit so that it could begin
to use the sewer virtually immediately upon its agreeing to pay
the city's users fee. He also found that the "lawfulness of the
City of Taunton's sewer use ordinance is not a material issue of
fact appropriately considered at the requested adjudicatory
hearing. The company must look to some other forum to preserve
its right to challenge this ordinance." Since there were no other
issues, the Regional Administrator denied the request.
Dyecraftsmen contends that the issue of the amount of time
needed to obtain relief from the alleged unfair and unlawful
city ordinances and rate structure is a material issue of fact
appropriately considered in an adjudicatory hearing. In addition, it
suggests that the question of whether the request for an adjudicatory
hearing set forth a material issue of fact is an issue of law which
ought to be referred to the General Counsel pursuant to 40 CFR
§125.36(m). Finally, the company argues that the decision of
the Regional Administrator, by subjecting them to the ordinances
and rate structure of Taunton, deprives the company of property
without due process of law and is therefore a significant decision
that the Administrator in his discretion should review.
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A close examination of the papers submitted by Dyecraftsmen
does not reveal any issues which merit consideration by the
Administrator. The only issue which the company sought to
discuss at the hearing related to the length of time required to
negotiate more favorable user requirements with the City of Taunton.l'
Whether the permit should allow Dyecraftsmen more time to finalize
its negotiations with the city only becomes a relevant issue if
the termination of the direct discharge is dependent on the
company's reaching an accommodation with the city.
It appears unquestioned that there is no physical obstacle
to Dyecraftsmen diverting its effluent to the city sewer system.
The reasonableness of the financial arrangements attendant to
hooking up with a sewer system does not, however, appear to be a
proper subject for determination by the Federal government; the
Regional Administrator, through the permit issuance process,
cannot and should not attempt to determine what are appropriate
user charges for each individual discharger. It must be assumed
that local charges are reasonable or can be negotiated to accept-
able levels. The forum for the complaints of the company is with
the city or, if necessary, with the State judicial system. The
Regional Administrator is in no position to resolve that dispute.
I/ The company has not sought to question the Regional Administrator's
finding that a physical connection with the city system had been
effected and that the direct discharge to the Mill River could be
terminated upon the company's agreement to the user charges. There
appears to be no reason to question the Regional Administrator's
determination that this element of the permit does not present a
material issue of fact.
4
133
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It does not follow, however, that it is necessary to delay
requiring the company to use the system until the issue is resolved.
The company has not shown why it would be prejudiced by using the
system even though it is still attempting to modify the terms of
the user agreement. It can always pay its initial charges under
protest and request reimbursement of any payments which later
might be determined to be overcharges. To allow the company to
continue to discharge when it is within its technical capabilities
to terminate that discharge solely to allow additional time to
negotiate more favorable economic terms would be inconsistent with
the goals of the Federal Water Pollution Control Act and would
impose no incentive for reaching agreement with the city. The
Regional Administrator's determination is accordingly correct and
need not be reviewed by the Administrator.
Finally, Dyecraftsmen's arg».;nent that the question of whether
the request for an adjudicatory hearing presented material issues
of fact should have been certified to the General Counsel is
2/
without merit.- The purpose of referring questions of law to
the General Counsel is to provide uniform interpretation of the
Act and EPA's regulations. The procedure was not established to '
weigh the validity of factual determinations or resolve
Constitutional issues. See General Counsel Opinions 23, 9, 15, 17
and 19. Whether a Regional Administrator incorrectly ruled on the
2?There is no evidence that this argument was advanced prior to
this petition.
5
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existence of a material issue of fact is either a determination
for the Administrator through his review under 40 CFR §125.36(n)
or for the appropriate United States Court of Appeals pursuant
to section 509 of the Act.
Accordingly, review of the decision of the Regional
Administrator denying Dyecraftsmen's request for an adjudicatory
hearing is hereby declined. The company having 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, its request for a stay pending judicial review is also
denied.
G. William Frlck
Judicial Officer
Dated: December 3, 1975
6
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BEFORE THE ADMINISTRATOR
U. S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C.
IN THE MATTER OF:
National Pollutant Discharge
Elimination System
Permits For
St. Regis Paper Company,
Buckport, Maine Mill,
(Permit No. ME0002160),
and
International Paper Company,
Jay, Maine Mill,
(Permit No. ME0001937),
Permittees.
NPDES Appeal No. 75-5
) DECISION OF THE ADMINISTRATOR
On May 29, 1975, the Maine Public Interest Research Group, Inc.
("PIRG") of Augusta, Maine, and the Environmental Law Institute, Inc.
("ELI") of Portland, Maine, filed a Petition for Review of the Decision
of the General Counsel on Matters of Law pursuant to 40 CFR 125.36(m)
in the above-captioned proceeding. The petition sought review of
Decision No. 4 of the EPA General Counsel issued on April 4, 1975
(the "OGC Decision"), in response to a PIRG/ELI letter to the Regional
Administrator, Region I, dated November 20, 1974, requesting a
determination of certain issues of law in connection with the two
above-designated National Pollutant Discharge Elimination System
("NPDES") permits issued by Region I on November 4, 1974.
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2
On June 13, 1975, the General Counsel advised PIRG/ELI that
the petition for review of the OGC Decision was not properly filed
since the Agency's regulations "do not authorize review of a General
Counsel's Decision on matters of law referred pursuant to 40 CFR
125.36(n) independent of review of the initial decision of the
Regional Administrator in the case to which it applies."
On June 26, 1975, PIRG/ELI refiled the petition for review
setting forth reasons supporting their disagreement with the
General Counsel's advice on the appropriateness of the petition.
Thereafter, on October 2, 1975, the General Counsel's office advised
PIRG/ELI that the subsequent refiling of the petition would be
considered as a petition for review of the initial decision of the
Regional Administrator issued on May 15, 1975, and the matter was
referred to the Administrator for review. Acknowledgment of
receipt of the petition and a request for bfiefs was issued by the
Chief Judicial Officer on October 10, 1975.
The two issues presented here are as follows: (1) Whether the
Administrator can (and, if so, whether he should) review a General
Counsel's decision on issues of law independent of a request for an
adjudicatory hearing, and (2) Whether the OGC Decision is clearly
erroneous, as a matter of law.
A review of the applicable EPA regulations (40 CFR 125.36) and
the briefs submitted in response to the October 10 request reveals a
certain ambiguity on the point of whether the regulations provide
137
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for review by the Administrator of a General Counsel's decision on
matters of law rendered independent of a request for an
adjudicatory hearing.
The ambiguity arises from the following provisions of
40 CFR 125.36:
(b) Requests for adjudicatory hearings and legal decisions.
(1) . . . any interested person may submit to the Regional
Administrator a request for an adjudicatory hearing pursuant
to paragraph (b)(2) of this section or a legal decision
pursuant to paragraph (m) of this section . . .
(1) Initial decision by Regional Administrator. . . . (3)
Where a legal decision has been requested and no adjudicatory
hearing has been granted, the Regional Administrator shall
render an initial decision within 20 days after receiving
the decision of the Assistant Administrator for Enforcement
and General Counsel [now the General Counsel].
(m) Decision of the Assistant Administrator for Enforcement
and General Counsel on questions of law.(T)Issues of law,
including questions relating to the interpretation of provisions
of the Act, and the legality and interpretation of regulations
promulgated pursuant to the Act, shall be decided in
accordance with this subsection and shall not be considered at
the adjudicatory hearing. . . . (3) Where no adjudicatory
hearing has been granted, issues of law may be referred by the
Regional Administrator to the Assistant Administrator for
Enforcement and General Counsel for a decision in the manner
specified in paragraph (m)(2) of this section [which provides
for referral of issues of law by the Presiding Officer at the
hearing and sets forth requirements for briefs] ... (4) ...
The decision of the Assistant Administrator for Enforcement and
General Counsel shall be final with respect to each referred
issue of law as it relates to the particular permit in question
and shall be relied upon by the Regional Administrator in
rendering the initial decision.
(n) Appeal of initial decision of the Regional^Administrator.
(1) Any party may file a petition for the Administrator's review
of the initial decision of the Regional Administrator or the
decision of the Assistant Administrator for Enforcement and
General Counsel relied upon by the Regional Administrator in
rendering the initial decision.
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4
St. Regis Paper Company and International Paper Company
(hereafter "Permittees") challenge the propriety of the original
PIRG/ELI petition for review, asserting that 40 CFR 125.36 deals
with "Adjudicatory Hearings" and that "any legal decision sought
under any subsection of 125.36 must be in the context of an
adjudicatory hearing, or a request therefor which has been denied."
Notwithstanding the language of 125.36(b)(l), which seems to
indicate a choice between a request for an adjudicatory hearing or
a legal determination, Permittees contend that the only procedure
for making a legal determination is that which pertains to "removal
of referred issues from the adjudicatory hearing" (125.36(m)(2))
and referral of issues of law "where no adjudicatory hearing has
been granted" (125.36(m)(3)).
Permittes argue, further, that subsection (n)(l) permits an
appeal to the Administrator only after an "initial decision" has
been rendered by a Regional Administrator and that under the regula-
tions an "initial decision" includes only these decisions made after
the close of an adjudicatory hearing or following the denial of
a request for an adjudicatory hearing. They point out that PIRG/ELI
requested a determination of legal issues without requesting an
adjudicatory hearing and thus, Permittees argue, there is no "initial
decision" from which an appeal to the Administrator can be taken.
They also contend that PIRG/ELI is not a "party1 to the proceedings,
as defined in 125.36(a)(l), since they have not requested an
adjudicatory hearing or been made a party to the proceeding.
139
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5
PIRG/ELI apparently concede that the Administrator may review
a decision of the General Counsel only after a Regional Administrator
has rendered an "initial decision." They contend, however, that an
initial decision does not hinge on the results of an adjudicatory
hearing or the denial of a request for an adjudicatory hearing.
They argue that an initial decision can be based on the results of
a legal decision by the General Counsel alone, without a request
for an adjudicatory hearing having been made (and granted or denied).
In their view, a May 15, 1975, communication from Region I trans-
mitting the decision of the General Counsel constituted an "initial
decision," in compliance with 125.36(m)(4).
PIRG/ELI contend that pursuant to 125.36(b)(l) "any interested
person" may request a legal determination by the General Counsel
(as an alternative to a request for a hearing) and since the
regulations do not provide a method by which such an interested
person may become a "party," the reference to "party" in 125.36(n)(l)
should be interpreted as referring to an "interested person who has
requested a legal determination, which determination (and subsequent
decision) is contrary to his interests."
The resolution of this issue turns on an interpretation of the
regulations, since the situation presented here appears not to be
covered by a specific provision in the regulations. It is clear
from paragraph (b)(l) that "any interested person" may submit a
request for a legal decision pursuant to paragraph (m) of 125.36,
as an alternative to requesting an adjudicatory hearing pursuant to
140
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6
paragraph (b)(2). It is also clear that where a legal decision has
been requested and "no adjudicatory hearing has been granted," the
Regional Administrator is required to render an initial decision
within 20 days after receiving the decision of the General Counsel
(125.36(1)(3)). What is unclear is whether the phrase "no
adjudicatory hearing has been granted" (as it is used in paragraphs
(1)(3) and (m)(3)) is intended to tie the referral of legal issues and
the rendering of an initial decision exclusively to a request for an
adjudicatory hearing. The controlling provision, paragraph (b)(l),
is ambiguous, since on the one hand it appears to authorize alternative
requests for adjudicatory hearings and requests for legal decisions
but, on the other hand, refers to the procedures of paragraph (m)(2)
[which deals with referrals by the Presiding Officer at the hearing]
for the disposition of requests for legal decisions.
The sense of the regulations, as they relate to the determination
of legal issues, is that some avenue other than an adjudicatory
hearing should be provided for an Agency decision on legal issues
where factual issues are not in controversy. The avenue chosen was
to provide for direct referral to the Agency General Counsel in
those instances where facts are not in dispute and, therefore, an
adjudicatory hearing does not appear to be necessary or appropriate.
Viewed in this light, it is apparent that the phrase "no adjudicatory
hearing has been granted" was intended and should be interpreted to
mean any situation where an adjudicatory hearing is not held. That
would include, obviously, the situation where no adjudicatory hearing
141
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7
has been requested because factual issues are not present, as well as
where a request for an adjudicatory hearing has been denied. To require
that an interested person submit a request for an adjudicatory hearing
knowing that there are no material factual issues in dispute, and
have the request denied as a prerequisite to entitlement to an
appealable initial decision on legal issues, appears to be an
unnecessary and unintended interpretation of the regulations.
I find, therefore, that the decision of the General Counsel in
this proceeding is reviewable under the regulations. PIRG/ELI is an
appropriate "party," since an interested person requesting a legal
decision should enjoy thp same standing as one requesting an
adjudicatory hearing, notwithstanding the more restricted definition
of "party" contained in the regulations.
Apart from the question of whether the Administrator can review
the OGC Decision (and, thus, the initial decision of the Regional
Administrator) is the question of whether he should exercise his
discretion to do so.
PIRG/ELI apparently have requested review by the Administrator
"because without exhausting all administrative review procedures,
it is extremely doubtful that an Appeals Court would hear the case."
This posture seems to be dictated by their belief that "it is a
distinct probability that the Administrator would find no grounds for
reversing the decision, for he would rely on the General Counsel for
advice. It is almost absurd to think the General Counsel will reverse
his own decision."
142
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It should be pointed out that the Administrator is equipped
to make an independent evaluation of the factual and legal issues
involved in petitions for review of NPDES permits. The assumption
by PIRG/ELI that "he would rely on the General Counsel for advice"
is unfounded. Certainly, considerable weight is given to the
opinions of the Agency's own counsel, but the Administrator, or
a designated Judicial Officer, may determine that a finding
of fact or conclusion of law contained in an initial decision "is
clearly erroneous or an exercise of decision or policy which is
important and which the Administrator should, in his discretion,
review" (125.36(n)(3)).
However, after a careful review of the PIRG/ELI petition, the
law, and the briefs filed by the various parties in this particular
matter, I am unable to find that the initial decision of the
Regional Administrator and the OGC Decision on which it relies are
+
clearly erroneous or involve an exercise of decision or policy
which the Administrator should review.
The definition of "new source" in Section 306(a)(2) of the
Federal Water Pollution Control Act, as amended (hereafter "the
Act")is clear in stating its applicability only to sources where
construction is commenced "after the publication of proposed
regulations prescribing a standard of performance under this section
which will be applicable to such source, if such standard is
thereafter promulgated." It is conceded that no new source standard
143
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9
of performance applicable to Permittees has been proposed under
Section 306. It seems obvious, then, that these facilities are
not "new sources" within the meaning of Section 306(a)(2).
The contention of PIRG/ELI that, notwithstanding the
aforementioned status of new source standards applicable to
Permittees' facilities, EPA is nonetheless required to determine
"best available demonstrated control technology" for these
facilities on a case-by-case basis, is not supported by a reading
of the Act as a whole.
Where EPA has not proposed and promulgated a new source
standard of performance for a particular category or subcategory
of sources, for whatever proper reason, the Act contemplates
that such sources will be treated as existing sources subject to
the requirement of Section 301(b)(l)(C) ("best practicable control
technology currently available," to be achieved by July 1, 1977).
Where, as here, regulations under Section 301 and 304 establishing
this level of pollutant reduction have not been promulgated, the
Act requires in Section 402(a)(l) that permits be issued containing
such conditions as the Administrator determines necessary to ,carry
the provisions of the Act (i.e., a case-by-case determination of
"best practicable control technology currently available").
Accordingly, I find the OGC Decision to be correct as a matter
of law and the initial decision of the Regional Administrator,
Region I, which relies upon the OGC Decision, to be the proper
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10
disposition of the matters considered herein. The PIRG/ELI
petition for review is denied. The subject permits are
consistent with the requirements of the Act and are hereby
ordered to be in full force and effect.
RusselE." TraTn
Dated: December 5, 1975
145
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BEFORE THE ADMINISTRATOR
U. S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C.
IN THE MATTER OF: ) c ,
\ NPDES Appeal No. 75-13
National Pollutant Discharge )
Elimination System ) NOTICE OF DENIAL OF
) PETITION FOR ADMINISTRATOR'S
Permit For ) REVIEW
)
Industrial Water Supply Company )
(Permit No. IL 0000141), )
Permittee. )
On October 7, 1975, Industrial Water Supply Company (hereafter
"Petitioner") of Tuscola, Illinois filed a Petition for Administrator's
Review, seeking review of a decision of the Regional Administrator,
Region V, issued through the Director of the Enforcement Division, on
September 26, 1975, denying Petitioner's request for an adjudicatory
hearing on the terms and conditions of the above-referenced permit.
Petitioner sets forth, as grounds for review, three alleged
errors in the findings of the Regional Administrator, to wit:
(1) he improperly interpreted and applied certain Rules
(104 and 404) of the Illinois Pollution Control Board in establishing
effluent limitations for BOD^ and suspended solids; (2) he failed
to take into account, in establishing effluent limitations for total
dissolved solids, Rule 408 of the Illinois Pollution Control Board,
in which a less stringent limitation (3500 mg/1) is set forth where
solids concentration is caused by recycling or other pollution abatement
----- '-,-n the case at hand, cooling towers which increase
146
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2
concentration by a factor of 5, according to Petitioner); and (3) he
failed to take into account, in determining low flow characteristics
of the receiving stream, present conditions which include discharges into
the receiving stream by the Urbana-Champaign Sanitary District
averaging in excess of 3 MGD, as well as the prospect of increasingly
greater flows in the future.
Petitioner asserts, in general, that the Regional Administrator
erred in finding that "none of the issues raised in the request [for an
adjudicatory hearing] constitute material issues of fact relevant to
the question of whether the permit should be modified." Appended to
the Petition are copies of reports of Petitioner's consulting engineers
which, in Petitioner's view, constitute material issues of fact
relevant to the question of whether a permit should be issued, denied, or
modified. The main report, dated September 12, 1974, describes a water
resource and wastewater management program applicable to Petitioner's
situation, which essentially involves procurement, treatment, and
distribution of treated water to the U.S. Industrial Chemical Processing
plant and other nearby users, and recommends discharge limitations for
BODcj, suspended solids, and total dissolved solids in substitution for
limitations then included in a draft NPDES permit.
The applicable EPA regulations governing requests for adjudicatory
hearings (40 CFR 125.36) do not provide for review by the Administrator
of a Regional Administrator's denial of a request for an adjudicatory
hearing. The regulations provide, in 125.36(c)(2), that, "If the
Regional Administrator determines that the request fails to meet the
147
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3
requirements of paragraph (c)(l) of this section [i.e.. the request
is not timely or does not include the various items described in
subsection (b), or_ does not set forth "material issues of fact relevant
to the questions of whether a permit should be issued, denied, or
modified"], he shall deny the request." Subsection (n) of 125.36, which
governs appeals to the Administrator, however, applies only in the case
of an "initial decision" of the Regional Administrator (which, under
125.36(1), results from an adjudicatory hearing) or 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
Regional Administrator in rendering the initial decision.
Since neither of the foregoing conditions pertains in this
proceeding, however, the applicable EPA regulations do not provide a
procedure for review by the Administrator of the September 26, 1975,
denial of Petitioner's request for an adjudicatory hearing.
Accordingly, there is no authority in 40 CFR, Part 125 for the
review requested by Petitioner. While the Administrator may have
inherent authority to review the actions of any Regional Administrator,
it does not appear that the decision of the Regional Administrator
in this case is clearly erroneous or involves an exercise of decision
or policy which is important and which the Administrator should, in
his discretion, review.
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The Petition for Administrator's Review is denied. The subject
permit is hereby ordered to be in full force and effect.
"Michael K. Glenn
Chief Judicial Officer
Dated: December 31, 1975
149
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CERTIFICATE OF MAILING
The foregoing is a true and correct copy of a Notice of Denial
of Petition for Administrator's Review, dated December 31, 1975,
deposited in the U.S. Mail, certified mail, at Washington, D.C.,
addressed to the following:
James F. Lemna
Lemna & Lee
Attorneys at Law
401 South Main Street
Tuscola, Illinois 61953
James 0. McDonald, Director
Enforcement Division
U.S. Environmental Protection
Agency
Region V
230 South Dearborn Street
Chicago, Illinois 60604
Francis Mayo
Regional Administrator
Region V
U.S. Environmental Protection
Agency
230 South Dearborn Street
Chicago, Illinois 60604
Chief Judicial Officer
Dated: December 31, 1975
150
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DECISIONS
OF THE
GENERAL COUNSEL
NUMBERS 1 THROUGH 36
SEPTEMBER 1974 - DECEMBER 1975
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE ASSISTANT ADMINISTRATOR FOR ENFORCEMENT
AND GENERAL COUNSEL ON MATTERS OF LAW PURSUANT TO
40 C.F.R. §125.36(m)
No. 1
In the Matter of National Pollutant Discharge Elimination
System Permit for Marathon Oil Company in Cook Inlet, Alaska
(X-74-2), the Presiding Officer has certified two issues of law
to the Assistant Administrator for Enforcement and General Counsel
for decision pursuant to 40 C.F.R. §125.36(m) (39 FR 27078, July
24, 1974). The parties, having had the opportunity to provide
written briefs in support of their respective positions, present
the following issues:
ISSUE OF LAW NUMBER I
Question Presented
May the Environmental Protection Agency ("EPA") issue National
Pollutant Discharge Elimination System permits ("Permits") pursuant
to section 402 of the Federal Water Pollution Control Act, as
amended (the "Act"), prior to the promulgation of guidelines
pursuant to section 304 of the Act?
Conclusion
Yes. EPA has the authority to issue Permits prior to the
promulgation of effluent guidelines pursuant to section 304(b)(l)(A)
of the Act.
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2
Discussion
Marathon Oil Company (the "Applicant") urges that since section
402(a)(3) of the Act requires the Administrator to be subject to
the same terms and conditions as the States are subject to under
subsection (b) of section 402, the Administrator is prevented from
issuing Permits until after promulgation of guidelines pursuant to
section 304(h)(2). The Applicant confuses guidelines required
under section 304(h)(2) and section 304(b)(1)(A). Section 304(h)(2)
requires the Administrator to publish guidelines with respect to
"the minimum procedural and other elements of any State program...."
Such guidelines were in fact promulgated on December 22, 1973
(38 FR 28391) and are codified at 40 C.F.R. Part 124. Since the
Permit in question was issued well after the date of promulgation
of the guidelines required under section 304(h)(2) of the Act, the
Applicant's argument that the Administrator may not issue permits
until promulgation of those guidelines is without merit.
Applicant further argues that the legislative history of the
Act indicates that guidelines, pursuant to section 304(b)(1)(A), are
a prerequisite to the issuance of Permits. The Act, however, clearly
contemplates the issuance of Permits prior to the promulgation of
guidelines pursuant to section 304(b)(1)(A). Section 402(a)(1) of
the Act authorizes the Administrator to issue Permits "upon condition
that such discharge will meet either all applicable requirements
152
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3
under section 301...of this Act, or prior to the taking of necessary
implementing actions relating to all such requirements, such conditions
as the Administrator determines are necessary to carry out the pro-
visions of this Act" (Emphasis added).
In my opinion, the above underscored language gives EPA the
authority to issue Permits prior to the final promulgation of
guidelines pursuant to section 304(b)(1)(A), which permits the
permittee to meet levels of effluent reduction "necessary to carry out
the provisions of [the] Act."
While I agree it would be desirable to have promulgated guide-
lines for permitting any point source, those guidelines are not a
necessary precondition. In Natural Resources Defense Council, Inc. v.
Train, 6 E.R.C. 1033 (DDC, 1973). the court stated that guidelines
should be promulgated by the deadlines set by the statute so they
"could be applied meaningfully in the (Permit) system." The court
did not hold that Permits could not be issued until promulgation
of the guidelines.
ISSUE OF LAW NUMBER II
Question Presented
Does EPA have the authority to issue Permits containing
provisions allowing for malfunctions of properly operated and
maintained pollution control equipment?
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4
Conclusion
Yes. However, the issuance of a Permit containing such
provision is in the discretion of the Administrator or Regional
Administrator.
Discussion
Applicant argues that the "position [of EPA] that the Act
does not allow for treating equipment malfunctions" is an
incorrect statement of EPA's interpretation of the Act. It is, our
opinion that Permits may be issued containing such conditions as
the Administrator or Regional Administrator determines, after
opportunity for hearing.
The application of this interpretation to a particular factual
situation involves issues of discretion and policy and is therefore
not answerable in this proceeding pursuant to 40 CFR §125.36(m).
Dated
—» =
Assistant Administrator for
Enforcment and General Counsel
154
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, B.C. 20460
DECISION OF THE ASSISTANT ADMINISTRATOR FOR ENFORCEMENT
AND GENERAL COUNSEL ON MATTERS OF LAW PURSUANT TO
40 C.F.R. §125.36(m)
No. 2
In the Matter of National Pollutant Discharge Elimination
System Permit for United States Pipe and Foundry Company, Bir-
mingham, Alabama, the Presiding Officer has certified four issues
of law to the Assistant Administrator for Enforcement and General
Counsel for decision pursuant to 40 C.F.R. §125.36(m) (39 F.R. 27078,
July 24, 1974). The parties, having had the ppportunity to provide
written briefs in support of their respective positions, present
the following issues:
ISSUE OF LAW NUMBER I
Question Presented
Does a consent decree entered into between U.S. Pipe and Foundry
Company and the Department of Justice, acting on behalf of the Environ-
mental Protection Agency, bind the Agency in its consideration of the
appropriate limitations, conditions, and terms to be imposed in the
permit to be issued to the Company?
Conclusion
The Agency must propose conditions for a permit consistent
with the terms of the decree and adopt such conditions in the issued
permit unless an Agency assessment of comments received pursuant to
155
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Section 401 and Section 402(a)(1) concludes that conditions inconsis-
tent with the decree should be imposed.
Discussion
The consent decree entered in the Refuse Act case United States v.
U.S. Pipe & Foundry, C.A. No. 71-536-S, N.D. Ala., represents an agree-
ment between the United States and the Company in settlement of the case
and adopted by the court as a consent judgment.* The requirements of
the Federal Water Pollution Control Act Amendments of 1972 (FWPCA) do
not per se preempt any conditions or requirements imposed on a discharger
by a consent decree resulting from a Refuse Act proceeding. The savings
* Three observations (which do not appear applicable to the instant case
on the facts cited) may be stated concerning consent decrees of this
nature: (1) If the Agency and the Company mutually agree that a term
or terms should be modified in the decree, the parties with concurrence
of the Department of Justice may petition the appropriate court for a
modification of the decree. Paragraph XIX of the decree provides that
either party may apply to the Court at any time for such further orders
and directions as may be necessary and appropriate. That modification
then can be considered in the development of the conditions of a permit.
(2) Under consideration in this opinion are only those terms, limitations
and conditions specified in the decree. Any requirements in a NPDES
permit which are not the specific subject of the decree may be deter-
mined in the manner ordinarily followed when permit conditions are
being considered.
156
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clause of the 1972 Amendments, Section 4, P.L. 92-500, provides that
no action or proceeding commenced by or against the Administrator or
any other officer or employee of the United States shall abate by
reason of the taking effect of the Amendments to the FWPCA. The
savings clause allowed the Refuse Act case commenced against U.S. Pipe
and Foundry prior to the 1972 Amendments to be fully prosecuted and
resolved. Nor does the savings clause require application of stan-
dards in the 1972 Amendments to pending Refuse Act suits. United States v.
Rohm & Haas Company, 353 F. 2d 993, 6 ERG 2016, (S.D. Texas, 1974).
The terms of the decree entered in the Refuse Act proceeding were
based on the parties' understanding of the best technical information
available at that time. The Agency entered into the agreement to en-
courage prompt construction of abatement facilities rather than delay
an abatement schedule until development of effluent limitations guide-
lines. The Government assumed the risk that more stringent limitations
than those imposed in the decree might be applicable to the company
under the FWPCA, while the company chanced that less stringent stan-
dards might apply in the future.
Paragraph XIV of the consent decree in question provides that the
decree is not a discharge permit nor does it affect the Company's ob-
ligation to secure a permit. The provision further provides that sub-
sequent to entry of the decree, a permit will issue, which to the full-
est extent possible in light of the requirements of Section 401 and
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Section 402(a)(1) will be consistent with applicable provisions of the
decree. By this language the Agency was not making an absolute com-
mittment or guarantee that the terms of the decree would be incorporated
in any NPDES permit ultimately issued to the company. This language
recognizes that the Agency is statutorily obligated by Section 402 to
provide an opportunity for comment, by interested persons and the public,
on permit conditions which the Agency intends to impose on an NPDES
permit holder and to give serious consideration to such comments. It
also recognizes that the Agency could not in a consent decree, entered
prior to the initiation of the permitting process, waive the rights of
a State in which a discharge originates to consider whether to certify
that the discharge will comply with certain requirements nor waive the
rights of a State whose waters might be affected by the discharge to
participate in the formulation of the conditions of the permit. Sec-
tion 401.
The Agency's obligation under Paragraph XIV is to propose a permit
consistent with the terms of the decree. The Agency's commitment in
the decree is not a guarantee that the Regional Administrator's deter-
mination under 40 C.F.R. §125.35, the initial decision by the Regional
Administrator, §125.36(1), or the final decision of the Agency will be
consistent with every limitation or condition set forth in the consent
decree. The company's obligation is not to oppose any conditions in
the proposed permit which are consistent with the terms of the decree.
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If during any of the proceedings provided for under the NPDES regula-
tions, 40 C.F.R. §125, a condition in the proposed permit is challenged
by an interested person or member of the public, other than the Agency
or the discharger, the arguments must be afforded as much consideration
in the determination of the condition as would be afforded in any per-
mit proceeding where no consent decree had been agreed to by the Agency
and the discharger.
The Environmental Protection Agency will have met its obligation
in the consent decree by proposing as acceptable limitations and con-
ditions those set forth in the decree and by adopting those conditions
in the issued permit if no opposition to those conditions arises dur-
ing Section 401 and 402(a) proceedings. Beyond such steps, the Agency
is obliged to weigh any comments conflicting with the proposed con-
ditions in a manner consistent with the public interest and issue a
permit with conditions different than those proposed if the public in-
terest requires such a modification. Delta Air Lines, Inc. v. CAB,
280 F. 2d 636 (B.C. Cir. 1960).
ISSUE OF LAW NUMBER II
Question Presented
Does Section 301(b)(l)(C) of the Act require the achievement of
effluent limitations more stringent than "best practicable control
technology" if such limitations are necessary to implement water qual-
ity standards established pursuant to the Act?
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6
Conclusion
Yes.
Discussion
By its terms, Section 301(b)(l)(C) requires achievement by July 1,
1977, of effluent limitations more stringent than "best practicable con-
trol technology" if such limitations are necessary to implement water
quality standards. This conclusion is confirmed by the legislative
history in the remarks of Representative Blatnik:
I also have an answer for those who, because
they feel that S. 2770 imposes more stringent
controls, would advocate that we adopt S. 2770,
as passed by the other body. Read section 303.
Read section 301(b)(1)(C). These sections re-
quire point sources of the discharge of pollu-
tants to install the 'best practicable control
technology currently available1 by January 1,
1976. This is consistent with the other body.
However, what if such control technology is re-
quired by the Water Quality Act of 1965?
H.R. 11896 requires that if the application
of 'best practicable control technology cur-
rently available' is not sufficient to meet
water quality standards, further and more strin-
gent controls must be imposed. This is more
restrictive than the requirement of the other
body, and it should be recognized as such. The
requirements of H.R. 11896, will assure that
water quality standards are met,, and that even
if such 'best practicable control technology
currently available' is not sufficient to meet
water quality standards, each point source will
still be required to be so equipped to further
enhance the quality of our waters. In other
words we require the upgrading of our waters to
a much greater degree than does S. 2770. House
Comm. on Public Works, 93 Cong., 1st Sess., A
Legislative History of the Water Pollution Con-
trol Act Amendments of 1972, Vol. 1 at 353
(Comm. Print 1973).
The language in H.R. 11896 was adopted in P.L. 92-500.
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ISSUE OF LAW NUMBER III
Question Presented
What provisions, if any, may legally be included in permits issued
by the Regional Administrator concerning the toxic pollutant standards
and prohibitions referred to in Section 307(a) of the Act prior to the
time such standards or prohibitions are determined and become effective?
Conclusion
The provision in the presently issued permit or any other similar
language providing for automatic modification of a permit upon promulga-
tion of a more stringent toxic standard under Section 307(a) is properly
included. 40 C.F.R. §125.22(a)(6) requires'the inclusion of this pro-
vision. Moreover, prior to promulgation of standards, a permit may
include conditions limiting or prohibiting the discharge of toxic pollu-
tants.
Discussion
The Environmental Protection Agency's regulations for the National
Pollutant Discharge Elimination System require the Regional Administrator
to insure that the terms and conditions of all permits provide for and
insure that if a Section 307(a) standard is established for a toxic pol-
lutant which is in a permittee's discharge and the standard is more
stringent than the limitation in the permit, the Regional Administrator
shall revise or modify the permit in accordance with the toxic stan-
dard or prohibition and so notify the permittee. 40 C.F.R. §125.22(a)(6)
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8
Prior to the promulgation of standards under Section 307, the
Administrator has the authority under Section 402(a)(1) to issue per-
mits with such conditions as he "determines are necessary to carry
out the provisions of the Act." Based on information now available
to him, he could condition such permits on effluent limitations con-
sistent with the need to protect the environment from toxic pollutants.
The permit conditions on toxic effluents will be superseded when the
toxic standards take effect.
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9
ISSUE OF LAW NUMBER IV
Question Presented
Does Section 101(a)(2) of the Act require that a permit issued
under Section 402 thereof be written so as to ensure the attainment of
the 1983 goal?
Conclusion
The attainment of the 1983 goal is to be accomplished by implementa-
tion of the water quality requirements under Section 303 or by establish-
ment of 302 water quality related effluent limitations. A permit issued
at the present time and scheduled to expire in 1979 should contain con-
ditions to meet the requirement of Section 301(b)(l)(C) as related to
Section 303 standards or to meet effluent limitations established
pursuant to Section 302 procedures.
Discussion
As stated in Section 101(a)(2) it is a national goal that "when-
ever attainable, an interim goal of water quality which provides for
the protection and propagation of fish, shellfish, and wildlife and
provides for recreation in and on the water be achieved by July 1,
1983."
Although this language is stated in terms of a goal and not a re-
quirement, other sections of the FWPCAA establish enforceable require-
ments and procedures to implement this goal. Section 301 mandates the
application of effluent limitations based on best practicable control
technology but in addition requires the application of any more strin-
gent limitation necessary to meet water quality standards "or required
163
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10
to implement any applicable water quality standard established pur-
suant to this Act."
The water quality standards established "pursuant to this Act"
are those established by Section 303 which provides the following criteria:
Such standards shall be such as to protect
the public health or welfare, enhance the
quality of water and serve the purposes of
this Act. Such standards shall be estab-
lished taking into consideration their use
and value for public water supplies, pro-
pagation of fish and wildlife, recreational
purposes, and agricultural, industrial, and
other purposes.... Section 303(c)(2) (em-
phasis added.)
The requirements of Section 302 are also directed at that goal.
Whenever...discharges of pollutants from a
point source or group of point sources, with
the application of effluent limitations re-
quired under section 301(b)(2) of this Act,
would interfere...with the attainment or
maintenance of that water quality...which
shall assure protection of public water sup-
plies, agricultural and industrial uses, and
the protection and propagation of a balanced
population of shellfish, fish and wildlife,
and allow recreational activities in and on
the water, effluent limitations...shall be
established which can reasonably be expected
to contribute to the attainment or main-
tenance of such water quality.
The legislative history ties this section directly to the 1983 goal.
"Section 302 [of the Senate bill, adopted in the 1972 Amendments] re-
quires more stringent standards than those required by Section 301 if
such effluent limits would interfere with attaining the [1983] interim
goal. The interim goal requires a water quality assuring protection and
164
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11
propagation of fish, shellfish, and wildlife, and provides for recreation
in and on the water." House Committee on Public Works, 93d Cong., 1st.
Sess., History of the Water Pollution Control Act Amendments of 1972,
Vol. 1 at 304-305 (Comm. Print 1973).
Clearly, effluent limitations and compliance schedules must be
fashioned aiming toward the 1983 interim water quality goal if BPT
and BAT limitations are insufficient for that goal. The mechanism for
including water quality related conditions in permits is less clear.
If Section 303 water quality standards are set at levels consistent with
the 1983 goal, the inclusion of more stringent limitations to meet that
goal are required by Section 301(b)(l)(C) to be imposed in a permit,
such as the instant one, expiring in 1979. If, however, the application
of requirements for BPT and water quality standards under Section 301(b)(l)
do not aim sufficiently toward that goal, a permit extending beyond 1977
may contain steps beyond the 1977 requirements looking toward compliance
with the 1983 goal. First, such a permit may contain compliance steps
which will assure a proper implementation of BAT after the BPT require-
ments are met. Second, Section 302 may be invoked to impose additional
compliance steps.
Although Section 302 may be invoked in a present proceeding, sub-
section (b) states that any stricter limitations and strategies can
be required only after a hearing, where the Administrator determines
the balance between economic and social costs of achieving the stricter
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12
controls and the social and economic benefits. If a person shows there
is no reasonable relationship between these costs and benefits, then
the limitation shall be adjusted as it applies to such person. Thus,
for these Section 302 effluent limitations to apply to a permittee now
seeking a permit, special procedural requirements of that section apply.
However, application of limitations derived under Section 302 is not
a substitute for compliance with Section 303 water quality standards.
Dated:
Alan G. Kirk II
Assistant Administrator for Enforcement
and General Counsel
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6 197
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF LAW
PURSUANT TO 40 C.F.R. §125.36 (m)
No. 3
In the matter of National Pollutant Discharge Elimination System
Permit for United States Steel Corporation, MO-0000817, Crystal City,
Missouri, the Presiding Officer has certified three issues of law to
the Assistant Administrator for Enforcement and General Counsel for
decision pursuant to 40 C.F.R. §125.36(m) (39 F.R. 27078, July 24,
1974). The parties, having had the opportunity-to provide written
briefs in support of their respective positions, present the following
issues:
ISSUE OF LAW NUMBER I
Question Presented
In a situation where effluent limitations and a permit for a
point source are based upon guidelines promulgated pursuant to
Sections 301 and 304 of the Federal Water Pollution Control Act, as
amended, (the "Act"), which are the subject of a pending proceeding
for judicial review in which the permittee is a party, can the
effluent limitations contained in the guidelines be incorporated
into an individual permit or must that portion of the permit be
held in abeyance pending the outcome of judicial review?
167
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2
Conclusion
EPA may issue individual permits based upon regulations which have
been promulgated in final form by the Environmental Protection Agency
pursuant to Sections 301 and 304 of the Act. This is so even where
appellate judicial review of the regulations is pending and where the
potential permittee is a party to such appeal.
Discussion
Section 509(b) provides, in pertinent part,
Review of the Administrator's action...[E]
in approving or promulgating any effluent
limitation or other limitation under Sections
301, 302, or 306...maybe had by an interested
person in the Circuit Court of Appeals of the
United States for the Federal Judicial Dis-
trict in which such person resides or trans-
acts business upon application by such person.
Any such application shall be made within 90
days from the date of such determination,
approval, promulgation, issuance or denial,
or after such date only if such application
is based solely on grounds which arose after
such 90th day.
This provision in Section 509(b) provides the mechanism, the
sole mechanism, by which appeal can be taken of limitations promul-
gated pursuant to Section 301. Congress, in enacting Section 509(b),
contemplated that a potential permittee could pursue two avenues
of action in connection with a permit to be issued under an applicable
effluent regulation. First, the potential permittee could appeal
the promulgation of the regulation pursuant to Section 509(b) where
the potential permittee could raise all of the arguments relative
168
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3
to its promulgation. It is in this action that the permittee should
challenge the foundation of the Environmental Protection Agency in
promulgating the applicable effluent limitation. The second course
of action would concern the application of a promulgated effluent
regulation to a particular discharge in an individual permit
proceeding. It is in the individual permit proceeding where the
applicability of the regulation to a specific discharge is to be
challenged. In this latter appeal, the permit applicant could
challenge the application of the regulation to his discharge but
not the promulgated regulation itself which must be tested under
the exclusive provisions of section 509(b)(1)(E).
This statutory structure allows a permit applicant to challenge
EPA's foundation in establishing effluent limitations on an industry
wide basis within 90 days of promulgation. This litigation would, of
course, concern itself solely with the validity of the promulgated
regulation as applied industry wide. It would not, normally, include
questions of applicability of the regulation to specific point source
discharge. Should a permit applicant in the process of receiving his
permit also be challenging the effluent regulation, he may, of course,
petition the court reviewing that regulation for a stay in either the
effectiveness of the regulation or an injunction precluding the
Environmental Protection Agency from issuing a permit based upon it.
169
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4
To do this, of course, would require the permit applicant to demonstrate
a substantial likelihood of success on the merits and irreparable harm.
The Act permits the Administrator, after opportunity for public
hearing, "to issue a permit for the discharge of any pollutant, or
combination of pollutants, notwithstanding Section 301(a), upon
condition that such discharge will meet either all applicable require-
ments under Sections 301, 302, 306, 307, 308, and 403 of this Act, or
prior to the taking of necessary implementing actions relating to all
such requirements, such conditions as the Administrator determines are
necessary to carry out the provisions of this Act." (§402) Should an
applicable effluent regulation, for example, be overturned, the
Administrator would remain in a position to issue a permit under
Section 402. In such a situation, the Administrator would make a
determination concerning the discharge and, where there were no
applicable requirements under Section 301, through an effluent
limitation and guideline promulgated pursuant to that section and
Section 304, the Administrator could nevertheless issue a permit
containing such conditions as the Administrator determines are
necessary to carry out the intendment of the Act.
Section 402 states clearly that if there are applicable
requirements under Section 301, the Administrator may issue a permit
based upon those requirements. The fact that regulations imposing
such requirements may be modified by a court or further Agency
170
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5
proceeding is irrelevant. The fact remains that the regulations were
promulgated pursuant to Section 301 and are effective rules of the
Agency. Accordingly, the Agency may issue its point source discharge
permits based on such regulations so long as they remain in effect.
Even if a stay were issued by a court, the Administrator still has
the authority to issue a permit pursuant to section 402 of the Act.
Permittee's argument that review of the regulations establishing
effluent guidelines and limitations could not have been obtained
pursuant to the pending appeal prior to the time a permit became
final and no longer subject to judicial review is therefore without
merit.
ISSUE OF LAW NUMBER II
Question Presented
Where an effluent guideline is subject to pending judicial
review, is a permit applicant entitled to an adjudicatory hearing
with regard to the effluent standards incorporated in a permit and
derived from the effluent guideline?
Conclusion
Yes, the permit applicant is entitled to an adjudicatory hearing
to consider all legitimate issues of fact concerning the applicability
of the regulation to the particular facility.
171
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6
A permit applicant is clearly entitled to challenge the
applicability of a promulgated regulation to his facility and
his particular discharge. See 40 C.F.R. §125.36. However, as
expressed in response to question number 1 above, the regulation
itself is not subject to review in the adjudicatory hearing since
Section 509 provides the exclusive vehicle for review in the Circuit
Courts of Appeal. At an adjudicatory hearing considering the
isfxance of a permit, the applicant may adduce and introduce
ev-i-aence concerning the discharge limitations in his permit as
derived from the regulation.
A permit applicant may show, at an adjudicatory hearing, facts
which would lead to the conclusion that the regulations are not
applicable to its facility, but the applicant may not elicit or
produce evidence alleging a lack of foundation for those regulations.
*
As indicated in response to Issue I above, all challenges to the
regulations issued under Sections 301 and 304 must be made under
the exclusive provisions under §509 (b), and may not be raised in a
permit proceeding under 40 C.F.R. Part 125.
ISSUE OF LAW NUMBER III
Question Presented
Must permits which are issued based upon guidelines subject to
pending litigation contain a provision requiring modification of such
172
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7
permit should any modification of the guidelines occur as a consequence
of judicial review?
Conclusion
No, the Administrator is not required by applicable law to include
such a condition in a permit. However, exercising its discretion, the
Agency will consider requests for modification of a permit where
modification of a regulation issued under Sections 301 and 304 results
from court order in the manner specified in the attached memorandum
from the Assistant Administrator for Enforcement and General Counsel
dated December 23, 1974.
Robert v". Zener
General Counsel (EGr-330)
Attachment
173
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LOST/
\
f UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
^ ^ WASHINGTON. D.C. 20460
DEC 2 3 1974
OFFICE OF
ENFORCEMENT AND GENERAL COUNSEL
MEMORANDUM
TO: Regional Administrators
Regional Enforcement Directors
FROM: Assistant Administrator for Enforcement and General Counsel
SUBJECT: Impact of Effluent Guidelines Litigation Upon Issued NPDES
Permits
As you know, almost all of the section 304(b) industrial
effluent guidelines (22 of the 27 industrial categories for which
effluent guidelines have been promulgated) are being challenged
in court pursuant to section 509(b). This litigation has raised
the question of what effect, if any, will a modification of
effluent guidelines following a remand or adverse court decision
have upon issued NPDES permits? Our policy for revision of issued
NPDES permits following a modification of applicable effluent
guidelines as the result of a court order is as follows:
If, following final promulgation of a court modified effluent
guideline, any NPDES permittee can demonstrate he has permit re-
quirements based upon effluent guideline requirements which were
subsequently modified by court order, he may request a revision
of his permit. A modification by court order would include situations
where the court remands to the Agency for further consideration
or explanation, and, as a result Of this review, EPA determines
that the regulation should be modified. As will be provided in
the preamble to the modified effluent guidelines, the request for
permit revision must be made in writing within 90 days of the date
of promulgation of such modified guidelines. EPA will not, absent
a timely and specific written request, revise any issued NPDES
permit pursuant to this policy. No requests for permit revision
on the basis of a court ordered modified effluent guideline will
be accepted prior to the final promulgation of the applicable
modified effluent guideline.
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Only those permit conditions and limitations based upon
promulgated effluent guidelines which were subsequently modified
as the result of a court order or remand may be revised pursuant
to this policy. This permit revision policy does not apply
to permit effluent limitations based upon effluent guidance
considerations, proposed effluent guidelines, water quality
standards or any other requirements other than a promulgated
effluent guideline. For all permit conditions and effluent
limitations not based upon promulgated effluent guidelines which
are subsequently modified as the result of court order or remand,
the permittee's failure to exercise his right to appeal during
the section 509(b) 90 day period is conclusive.
Procedures for the revision of NPDES permits based upon
court ordered modified effluent guidelines will be those specified
in 40 CFR Part 125. Public notice shall be provided for each
proposed permit revision. Any interested party may request an
adjudicatory hearing on the Regional Administrator's tentative
determination to grant or deny a request for permit revision.
If other permit requirements are based upon effluent limitations
which are revised pursuant to this policy, those other requirements
may have to be adjusted accordingly. For example, a revised, less
stringent effluent limitation may be achievable in a shorter period
of time than had been allowed in the original permit schedule
of compliance. If so, the schedule should be shortened in accordance
with the shortest, reasonable period of time principle specified
in the NPDES regulations. Similarly, it may be appropriate in some
cases to revise monitoring requirements with respect to revised
effluent limitations.
It must be emphasized that the possibility of court ordered
modifications in the guidelines cannot be allowed to interfere with
abatement programs established in permits. Rigorous enforcement of
construction schedule requirements and other existing conditions is
essential regardless of whether some revision in final effluent
limits could take place.
It must also be emphasized that to minimize delays, confusion,
and duplication of effort, permit revisions based on guideline
changes must be granted as sparingly as possible. In many cases,
for example, effluent limits for dischargers who would appear to
be covered by a guideline were actually established by analogy to
the guideline because the discharger did not actually fit within
the described category. In these situations, of course, a court
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ordered modification of the guidelines would not justify a
permit revision since the discharger could have pursued an
individual remedy at the time the permit was originally issued.
If you have any questions with respect to this memorandum,
"lease contact Rick Johnson, BUlSfizidii. or Brian
,-.» *\ •
vi*
Alan G. Kirk II
cci State Directors of
approved NPDES prograraa
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 C.F.R. §125.36(m)
No. 4
In the matter of National Pollutant Discharge Elimination
System Permits for St. Regis's Paper Co., M.E. 0002160 and
International Paper Co., M.E. 0001937, the Regional Administrator
has certified three issues of law to the General Counsel for
decision pursuant to 40 C.F.R §125.36(m) (39 F.R.27078.
July 24, 1974). The parties and interested persons, having had
the opportunity to provide written briefs in support of their
respective positions, present the following issues:
ISSUE OF LAW NO. I
Question Presented
"Due to the failure of EPA to propose standards of performance
for new sources under section 306(b)(l)(B) of the Act, at the time
mandated by the Act for such standards (i.e., January 1974), is
the Environmental Protection Agency required to implement the
policies and requirements of section 401 and 306 using its best
professional judgement to determine best available demonstrated
control technology in the issuance of permits to new sources in fact?"
177
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CONCLUSION
EPA may issue permits requiring compliance with a standard
of performance only when such standard has been promulgated pursuant
to section 306 of the Act. Pending promulgation of new source
standards for a category of sources, effluent limits should be
based upon section 402(a)(1) of the Act, which authorizes the-
Administrator to impose all conditions which he determines to
be necessary to carry out the provisions of the Act. In cases
where, as here, no new source standard of performance has been
proposed 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 question
in order to meet the deadline set forth in §301 of the Act. Further,
since the permit may be effective beyond such deadline, a compliance
schedule necessary to achieve the 1983 standard set forth in §301
may be included.
DISCUSSION
Section 306(a) provides, in pertinent part:
"(2) The term 'new source' means any source
the construction of which is commenced after
the publication of proposed regulations
prescribing a standard of performance under
this section which will be applicable to
such source, if such standard is thereafter
promulgated....
* * *
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(3) The term 'source' means any building,
structure facilities or installation from
which there is or may be the discharge of
pollutants.
* * *
(5) The term 'construction' means any placement,
assembly, of installation of facilities or
equipment (including contractual objections to
purchase such facilities or equipment) at the
premises where such equipment will be used,
including preparation work at such premises."
All interested persons concede that no new source standard of
performance has been proposed under section 306 which would be
applicable to the subject point sources. Hence, it is quite clear
that they cannot constitute "new sources" within the meaning of
section 306(a)(2).
Nevertheless, the requestor Environmental Law Institute (ELI),
urges that the Administrator should fashion new sources standards
for these plants on a case-by-case basis, the standards themselves
reflecting the Administrator's best judgment °f the requirements
of section 306 as applied in the individual circumstances of these
cases. The contention is premised on the view that failure to
promulgate new source performance standards applicable to plants
in these subcategories of the pulp and paper industry represents a
violation of the Administrator's statutory obligation to do so and
that this failure should not insulate essentially new plants from
179
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pollution control standards to which they would be subject had
the statutory deadline been adhered to. ^J
The Agency does not accept the contention that Natural
Resources Defense Council, Inc. v. Train, F. Supp.
6ERC 1033 (D.D.C. 1973), rev'd in part F. 2d
7 ERG 1209, (D.C. Cir.. 1974), the case relied upon by ELI,
is necessarily dispositive of its statutory obligation to issue new
source standards for the relevant categories of pulp and paper
mills by January 18, 1974. Even were this to be conceded, however,
it would not compel the conclusion that section 306 is the sole
provision of the Act to which reference should be made in determining
the appropriate effluent limits for the mills in question.
Section 306 clearly requires that a new source performance
standard be promulgated before permits are to be issued based on the
Agency's nationwide assessment of what constitutes the "best
available demonstrated control technology" for new sources in a
Section 306(b)(l)(A) requires the Administrator to publish a list
of classes and categories of sources for which new sources are to
be proposed within 90 days after passage of the 1972 Amendments
for the FWPCA. The list, including the category "pulp and paper
jnil-ls\ was .puVLished on~,Janua,ry .1.6. 19.7 3, Section 306Cb) (1) (B)
requires the Administrator to publish proposed standards of
performance for each category on the list within one year thereafter,
and to promulgate them within 120 days after proposal. Standards
of performance for several subcategories within the pulp & paper
manufacturing category, but not for the categories of mills
presently in issue, were proposed and subsequently were promulgated
on May 29, 1974.
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specified industrial category. It is equally clear that prior
to the proposal of such standards no source whose construction, as
defined in section 306(a)(5), has already commenced may be deemed a
new source subject to the subsequently promulgated standards.
Such plants would, instead, be existing sources subject to
the requirement in section 301(b)(l)(A) that effluent limits reflecting
the application of the best practicable control technology currently
available be achieved by July 1, 1977.
In this case, the Administrator has not yet promulgated
regulations pursuant to sections 301 and 304 establishing this level
of pollutant reduction. Accordingly, pursuant to section 402(a)(l),
permits issued to these discharges should contain such conditions as
are determined to be necessary to carry out the provisions of the
Act.
While we do not speculate as to the specific effluent limitations
and conditions which the Regional Administrator may deem necessary in
this instance, we do observe that the age of facilities in question
is an appropriate consideration in fashioning effluent limitations on an
individual basis during the interim before regulations under sections
301, 304 and 306 are promulgated. Where, as appears to be the case here,
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major new construction is taking place, considerable flexibility
may exist in the installation of pollution control technology.
Such flexibility should be a factor considered in the determination
of effluent limitations achievable by. the best practicable
control technology.
ISSUES OF LAW NO. U AND III
Having resolved question T above, and finding that it is
necessary for a new source performance standard to be at least
proposed pursuant to section 306 of the Act in order for a
source to be a new source within the meaning of section 306, the
remaining two questions certified are no longer releyant to
these proceeding.
APR 4 1975
Dated:
V. Zener
General Counsel
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Washington, D.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF LAW
PURSUANT TO 40 C.F.R. §125.36(m)
No. 5
In the matter of National Pollutant Discharge Elimination System
Permits for Marathon Oil Company, Union Oil Company of California,
Atlantic Richfield Company, and Mobil Oil Corporation, the Presiding
Officer has certified seven issues of law to the Assistant Adminis-
trator for Enforcement and General Counsel for decision pursuant to
40 C.F.R. §125.36(m) (39 F.R. 27078, July 24, 1974). The parties,
having had the opportunity to provide written briefs in support of
their respective positions, present the following issues:
ISSUE OF LAW NUMBER I
QUESTION PRESENTED
"Do the [NPDES] regulations provide for an adequate separation of
the judicial function from other Agency functions, or do they mix the
judicial function with other functions by requiring the Regional
Administrator, rather than the Presiding Officer, to render the
initial decision in connection with the adjudicatory hearing?"
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CONCLUSION
The referral of issues of law to the General Counsel, provided for
in 40 C.F.R. Part 125, is to insure that provisions of the Federal Water
Pollution Control Act and implementing regulations issued thereunder are
applied uniformly in permit issuance proceedings conducted in the several
Regional Offices. The intent of 40 C.F.R. 125.36(m) is to enable questions
concerning the interpretation of that Act and pertinent regulations, as
well as the consistency of the Agency's regulations with the statutory
requirements, to be resolved in this office. The issue of law presented
herein, on the other hand, involves a question of Federal constitutional
law. As such, the issue is more appropriately presented to a United
States Court of Appeals on appeal from final Agency action on the permits.
ISSUE OF LAW NUMBER II
QUESTION PRESENTED
"May the Regional Administrator consider issues outside the record
of the adjudicatory hearing in reaching his decision, and, if so, would
such consideration deny the PERMITTEES due process of law?"
CONCLUSION
The provision of the NPDES regulations referred to by the requestors,
40 C.F.R. 125.36(n)(12), authorizes the Administrator to decide appeals
from the initial decision of the Regional Administrator on the basis of
the record presented and other considerations he deems relevant. The
184
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3
regulations do not expressly authorize consideration of matters outside
the record of the adjudicatory hearing by the Regional Administrator.
The question of whether consideration of material outside the
record of the hearing by the Regional Administrator would deny a permit
applicant "procedural due process" is a matter of constitutional law
properly addressed in the Courts of Appeals.
ISSUE OF LAW NUMBER III
QUESTION PRESENTED
"May the Administrator consider matters oiitside the record of the
adjudicatory hearing in reaching this decision, and, if so, would such
consideration deny the PERMITTEES due process of law?"
CONCLUSION
As indicated in the response to the foregoing question, the NPDES
regulations authorize the Administrator, in determining appeals from
initial decisions of the Regional Administrators, to take into account
relevant considerations not included in the record of the adjudicatory
hearing. 40 C.F.R. §125.36(n)(12). The constitutionality of the
regulation is beyond the scope of issues referrable to the General
Counsel.
185
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ISSUE OF LAW NUMBER IV
QUESTION PRESENTED
"Do the regulations deny the PERMITTEES due process of law by
requiring the Presiding Officer to admit all relevant, material
evidence without giving the PERMITTEES discovery and subpoena power
sufficient to enable the PERMITTEES to determine what evidence under
the Agency's control exists and may be relevant and material?"
CONCLUSION
The Federal Water Pollution Control Act contains no authority for
the Agency to issue subpoenas in connection with the issuance or modifi-
cation of permits under Section 402 of the Act. Thus the Agency's ability
to obtain information from applicants is confined to the authority conferred
by Section 308 and it has no greater authority than applicants to compel
production of evidence from third parties. Applicants, of course, have
available to them the provisions of the Freedom of Information Act, 5 USC
§552, to discover documents within the Agency's custody.
Whether the absence of subpoena power for permit applicants in the
Act and the regulations constitute a denial of due process is a question
beyond the scope of issues of law referrable to the General Counsel.
186
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ISSUE OF LAW NUMBER V
QUESTION PRESENTED
"Does the fact that the regulations place the burden of proof and
of going forward with the evidence upon the Requestors (PERMITTEES)
without providing for discovery, subpoena of witnesses and other
procedures normally allowed in administrative proceedings to insure
a fair hearing deny the PERMITTEES due process of law?"
CONCLUSION
The issue, raising as it does constitutional issues, is beyond
the scope of issues referrable to the General Counsel.
ISSUE OF LAW NUMBER VI
QUESTION PRESENTED
Was the Agency's action in denying the PERMITTEES' motion to
have Presiding Officer William J. Sweeney appointed a Judicial Officer
with power to make findings and conclusions improper?
CONCLUSION
40 CFR §125.36(a)(4) (iii) provides that the Administrator may delegate
any of his authority, including that of making findings of fact, to a
Judicial Officer. Delegation is, under the regulation, a matter within
the discretion of the Administrator. Whether a delegation or a refusal
187
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to delegate these functions in a particular proceeding is an abuse of
discretion is a factual question, rather than an issue of law properly
referrable to the General Counsel. In any event, there are no facts
available to us which indicate whether or not the refusal to appoint
the Presiding Officer as a Judicial Officer was proper.
To the extent that issue of law number VI purports to present
constitutional issues, the proper forum for its disposition is a
Federal Court of Appeals.
ISSUE OF LAW NUMBER VII
QUESTION PRESENTED
"Is the Regional Administrator bound by the Presiding Officer's
rulings on the admission of evidence?"
CONCLUSION
No. 40 CFR 126.36(1)(6) provides:
The rulings of the Presiding Officer on the admissiblity
of evidence, the propriety of cross-examination, and other
procedural matters shall be final and shall appear in the
record.
This provision is intended to establish procedural rulings as final for
the purposes of the hearing and to prevent interlocutory review of the
Presiding Officer's decisions. Given its limited purpose and the fact
that it is not meant to preclude substitution of the Regional Administrator's
judgment for that of the Presiding Officer, the Regional Administrator
is not thereby barred from modifying rulings of the Presiding Officer and
188
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taking appropriate action, including a remand for the purpose of
introducing evidence initially excluded.
Dated:
Robert V. Zener
General Counsel
APR 4 1975
189
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTER OF
LAW PURSUANT TO 40 CFR §125.36(m)
No. 6
In the matter of NPDES Permit WV 0001279, E. I. duPont de Nemours
& Co., Washington Works, Parkersburg, West Virginia (duPont), a legal
issue has been referred to the General Counsel for decision pursuant
to 40 CFR §125.36(m) (39 FR 27078, July 24, 1974). DuPont has not sub-
mitted a brief concerning this issue within twenty days of the referral
(40 CFR §125.36(m)(2)), but has requested that ruling on the issue be
deferred until the Agency acts on duPont's request that the referral
be expanded in scope or that the Regional Office reverse its decision
denying an adjudicatory hearing on the well disposal at issue.
The decision whether to grant or deny an adjudicatory hearing is
*
a matter of discretion for the Regional Administrator. 40 CFR §125.36(c)
This decision is not reviewable either by the appeal procedure set forth
in 40 CFR §125.36(n) or by the procedure for decisions on issues of law
under 40 CFR §125.36(m). Moreover, the decision to grant or deny an
adjudicatory hearing on factual issues (40 CFR §125.36(c)(ii)) has no
bearing upon the referred legal issue. If the Regional Administrator
determines that the opinion of the General Counsel is required on addi-
tional issues, he may refer them in his discretion. There is, however,
no reason to delay issuance of this decision.
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QUESTION PRESENTED
Does the Environmental Protection Agency have the authority to
regulate the injection of industrial waste by NPDES permits?
CONCLUSION
The Environmental Protection Agency has authority to control
well injection through conditions in NPDES permits issued for dis-
charges into navigable waters.
DISCUSSION
The Office of General Counsel concluded, in an opinion of law
dated December 13, 1973 (attached), that disposal of pollutants into
wells is subject to regulation through conditions in an NPDES permit
issued for an associated surface water discharge. See 40 CFR §125.26.
The only question which requires consideration here is whether this
conclusion must be altered in light of the decision of the District
Court for the Southern District of Texas in United States v. GAF, Civ.
Action No. 74-G-150.
In the GAF case, the United States sought a temporary restraining
order, and temporary and permanent injunctive relief, to prevent the
drilling of subsurface wells for disposal of organic chemical wastes.
From the opinion, it does not appear that GAF had received a permit
for any associated surface water discharge. The court held that "The
disposal of chemical wastes into underground waters which have not been
alleged to flow into or otherwise affect surface waters does not con-
stitute a discharge of a pollutant . . . ."
191
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The court's conclusion has little relevance to the issue of the
Agency's authority to include conditions in a permit for disposal into
surface navigable waters which would control associated well discharge.
The court was, in fact, careful to draw this distinction in its opin-
ion:
Plaintiff has not complained of a viola-
tion of 'any permit condition or limi-
tation' by defendant. Indeed, there is
no allegation that the Administrator has
found such a violation by defendant.
This Court's jurisdiction depends, there-
fore, on whether the Administrator could
have found that the defendant is 'in
violation of section 1311, 1312, 1316,
1317, or 1318' of Title 33.
The court, in other words, rested its holding in relevant part* upon
whether or not a discharge of a pollutant into underground waters it-
self constituted a discharge into navigable waters invoking the regula-
tory requirements of the FWPCA. It specifically declined to address
the range of discretion which the Act confers upon the Administrator in
establishing conditions in permits for discharges into surface navig-
able waters. Similarly, the provisions of EPA's NPDES regulations which
require control of well disposal in connection with NPDES permits for
surface water discharges were not considered by the court, and their
validity was not at issue.
* The court also concluded that a discharge of a pollutant into navig-
able waters without a permit is not, of itself, a violation of the Act,
unless applicable effluent limitations and standards have been estab-
lished by the Administrator. This portion of the opinion has no rele-
vance to the instant question.
192
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Accordingly, we conclude that the GAF opinion does not modify the
opinion of December 13, 1973, and that opinion is reaffirmed.
Like any Federal agency, EPA is bound to follow its own regula-
tions. See, e.g., Service v. Dulles, 354 U.S. 363 (1959); United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). EPA must
continue to apply the provisions of 40 CFR §125.26 until that rule is
judicially struck down or administratively revoked, modified, or sus-
pended.
flp« 81975
Dated:
193
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•tf
\
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
? -TL ^3 A
WASHINGTON, D.C. 20460 -H~ J f (J
OFFICE OF
ENFORCEMENT AND GENERAL COUNSEL
MEMORANDUM
TO: Regional Counsel, Region IX
FROM: Acting Deputy General Counsel
SUBJECT: Applicability of NPDES to Disposal of Pollutants into
Wells
Question;
Would disposal of pollutants into wells in each of the follow-
ing situations be covered by the NPDES?
(a) The discharger has an existing surface water discharge.
He proposes as part of an abatement program to divert a portion of
his waste stream to a well, while continuing to discharge the re-
mainder to the surface water.
(b) The discharger has an existing surface water discharge.
He proposes as part of an abatement program'to discontinue his
surface water discharge and divetfc- his entire waste stream to a
disposal well.
(c) The discharger has an existing surface water discharge
and also currently disposes of a portion of his waste stream into
a well. He proposes to continue this practice.
(d) The discharger has an existing surface water discharge
and also currently disposes of a portion of his waste stream into
a well. He proposes as part of an abatement program to discontinue
his surface water discharge and divert his entire waste stream to
a disposal well.
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(e) The discharger currently has no surface water discharge
and disposes of all his waste waters into a well. He proposes to
continue this practice.
(f) The discharger currently has no surface water discharge and
disposes of all of his wastewaters into a well. He now proposes to
divert a portion of his waste stream to a surface water discharge.
(g) The discharger has no existing discharge and proposes to
commence a new discharge. He intends to dispose of all his waste-
waters into a well.
(h) The discharger has no existing discharge and proposes to
commence a new discharge. He intends to dispose of a portion of
his wastewaters into a well and discharge the remainder to a surface
water.
Answer;
If a State NPDES program has been approved, the State would
be required to control the well disposal in all the listed situations.
Prior to State NPDES program approval, in all the listed situations
except (e) and (g), the Regional Administrator must establish
conditions invthe NPDES permit for discharge into navigable water.
Such conditions must prohibit the well disposal, or must control
such disposal in order to prevent pollution of ground and surface
water resources and to protect the public health and welfare.
Djs.cussion:
In your memorandum of November 20, you set forth the eight
hypothetical situations listed above. In all cases, if a State
permit program has been approved, Subpart I of EPA's State Program
Guidelines (40 CFR §124.80) would be applicable. If no State program
has been approved, the Administrator's authority.is set forth in
40 CFR Part 125.
Jurisdiction over a permittee is based upon §301 of the Act,
which provides that the "discharge of a pollutant" is unlawful
except as in compliance with the regulatory provisions of the Act.
Section 402 authorizes the Administrator to issue a permit "for
the discharge of a pollutant." Under §502(12) the term "discharge
of a pollutant" is defined so as to include only discharges into
195
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navigable waters (or the contiguous zone or the ocean). Discharges
into ground waters are not included. Accordingly, permits may not
be issued, and no application is required, unless a discharge into
navigable waters is proposed or is occurring.
Section 125.26(a) of the NPDES regulations requires the Regional
Administrator to formulate and apply permit conditions to prevent
pollution of surface and underground water resources whenever disposal
into wells is contemplated as part of a program to comply with
effluent limitations and other requirements in an NPDES permit. This
provision cannot, of course, extend EPA's jurisdiction to cover disposal
into wells not in connection with discharges into navigable waters.
However, whenever a permit is issued for a discharge into navigable
waters, §125.26(a) requires controls to be applied to associated
discharges into wells.
Thus, with respect to your specific questions, application of
•the principles set forth above indicates that an NPDES permit would
be required in all cases where there is now, or is proposed, a dis-
charge into navigable waters. In all such cases, 40 CFR §125.26(a)
requires permit conditions to prohibit well disposal, or to control
such disposal in order to prevent pollution of ground and surface
water resources and to protect the public health and welfare. Only
in cases (e) and (g) in your memorandum is there no discharge into
navigable waters. Thus, in these cases, no Federal NPDES permit
would be required, and the Regional Administrator would have no
authority to impose conditions concerning well disoosal.
nobert "V. Zener
cc: Rick Johnson
Bert Printz
(JLLL, /2jU?^_<
AWEckert:dwk:(12/1.2/73 •
196
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UNITED STATES GOVERNMENT
TO
Robert Zenor, Attorr.e-y
Office of General Counsel
ENVIRONMENTAL PROTECTION AGENCY REGION IX
DATE:November 20, 1973
FROM : Cassandra Dunn, Regional Counsel
Region IX
SUBJECT- Applicability of NPDES to Disposal of Pollutants
Into Wells
Section 402 (b) (1) (D) of the FWPCA requires that a state must
be able to issoie permits to control the disposal of pollutants
into wells before the Administrator may approve its program
for participation in NPDES. According to 402 (a) (3) the permit
program cf the Administrator shall be subject to the same
terms and conditions as apply to a State permit program.
Consequently 40 CFR 125, governing the issuance of NPDES
permits by EPA, provides at Part 125.26(a) that the Regional
Administrator shall specify additional terms and conditions
in a permit if an applicant proposed to dispose of pollutants
into wells as part of a program to meet the requirements of
an NDPES permit.
In view of the foregoing, we wish to request an opinion from
the Office of General Counsel as to whether the disposal of
pollutants into wells in each of the following cases would
be covered by NPDES:
(a) The discharger has an existing surface water dis-
charge. He proposes as part of an abatement pro-
gram to divert a portion of his waste stream to a
well, while continuing to discharge the remainder
to the surface water.
(b) The discharger has an existing surface water dis-
charge. He proposes as part of an abatement pro-
gram to discontinue his surface water discharge and
divert his entire waste stream to a disposal well.
(c) The discharger has an existing surface water dis-
charge and also currently disposes of a portion of
his waste stream into a well. He proposes to
continue this practice.
197
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-2-
(d) The discharger has an existing surface water
charge and also currently disposes of a portion
of his waste stream into a well. He proposes as
part of an abatement program to discontinue his
surface water discharge and divert his entire
waste stream to a disposal well.
(e) The discharger currently has no surface water
discharge and disposes of all his waste waters
into a well. He proposes to continue this
practice.
(f) The discharger currently has no surface water dis-
charge and disposes of all of his wastewaters into
a well. He now proposes to divert a portion of
his waste stream to a surface water discharge.
(g) The discharger has no existing discharge and
proposes to commence a new. discharge. He intends
to dispose of all his wastewaters into a well.
(h) The discharger has no existing discharge and
proposes to commence a new discharge. He intends
to dispose of a portion of his wastewaters into
a well and discharge the remainder to a surface
water.
We would appreciate advice as soon'as possible.
Thanks so much.
A
CASSANDRA DUNN
REGIONAL COUNSEL
198
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS
OF LAW PURSUANT TO 40 C.F.R. §125.36(m)
No. 7
In the matter of National Pollutant Discharge Elimination System
Permit for Central Illinois Public Service Company (CIPSC) . No. IL0000108,
Coffeen Lake, Illinois, the Regional Administrator has certified one
issue of law to the Assistant Administrator for Enforcement and General
Counsel for decision pursuant to 40 C.F.R. §125.36(m) (39 FR 27078,
July 24, 1974). The requestor and other interested persons, having had
the opportunity to provide written briefs in support of their respective
positions, present the following issue:
ISSUE OF LAW
Question Presented
"Does either the Federal or State Government have power to regulate
discharges into Central Illinois Public Service Company's private lake
when the water which escapes intermittenly from the lake over the spill-
way is not polluted?"
CONCLUSION
EPA may regulate discharges into any private lake, when such lake
constitutes "navigable waters" as that term is defined in §502(7) of the
Federal Water Pollution Control Act, as amended (the "Act").
199
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DISCUSSION
Section 502(7) of the Act defines "navigable waters" as "the waters
of the United States, including the territorial seas." It is clear that
the intent of Congress in adopting this definition of "navigable waters"
was to broaden the concept of navigable waters to "portions thereof,
tributaries thereof... and the territorial seas and the Great Lakes."
[Emphasis added.] United States v. Holland, 373 F. Supp. 665, 671 (M.D.
Fla. 1974). Recent court decisions indicate that traditional concepts
of navigability have been abolished as a controlling factor in deter-
mining whether a body of water constitutes "waters of the United States"
and that Congress intended to assert jurisdiction under the Act over all
waters to which its power extends under the commerce clause of the
Constitution. U.S. v. Ashland Oil and Transportation Co., (6th Cir.
1974) 504 F 2d 1317 , 7 ERG 1114; U.S. v. G.A.F. , F. Supp. .
(S.D. Texas) No. 74-G-150, Feb. 5, 1975; NRDC v. Callaway, F.
Supp. , (D.D.C.) No. 74-1242, March 27, 1975.
The Agency has promulgated regulations implementing the statutory
definition of navigable waters to include:
(1) All navigable waters of the United States;
(2) tributaries of navigable waters of the
United States; (3) interstate waters; (4) in-
trastate lakes, rivers, and streams which are
utilized by interstate travelers for recrea-
tional or other purposes; (5) intrastate lakes,
rivers, and streams from which fish or shell
fish are taken and sold in interstate commerce;
and (6) intrastate lakes, rivers, and streams
which are utilized for industrial purposes by
industries in interstate commerce.
40 C.F.R. §125.l(p)
200
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The requestor agrees that Lake Coffeen was formed by the construc-
tion of an earthen dam, spillway, and appurtenances across the McDavid
Branch of the East Fork of Shoal Creek. Part of the water in the lake
apparently comes from McDavid Branch, part from direct runoff of rain-
fall falling upon the McDavid Branch Watershed. Waters from Lake
Coffeen are used as cooling water for CIPSC's turbine condenser and are
returned to the lake. Periodic overflow from the spillway to the McDavid
Branch below the impoundment occurs during times of heavy rainfall.
CIPSC states that McDavid Branch is an intermittently flowing, narrow
and shallow stream. Further, the facts appear to indicate that McDavid
Branch may be a tributary of a larger stream which flows (albeit inter-
mittently) to waters which even the requestor would agree constitute
"waters of the United States."
The above cited regulation, 40 C. F. R. §125.1 defines "navigable
waters" to include "tributaries of navigable waters." Thus, it appears
that McDavid Branch may well be determined by the finder of fact in this
case to be within the definition of "navigability" contained in the
regulation and the Act. The mere fact that CIPSC owns all of the land
surrounding the impoundment and excludes the public from the use of the
impoundment for recreational purposes would in no way affect the deter-
mination that McDavid Branch is includable within the definition of
"waters of the United States." If McDavid Branch, prior to impoundment,
was "waters of the United States" within the meaning of the Act, then
the lake formed by impounding a segment of the stream remains "waters of
the United States."
201
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Further, if the McDavid Branch ±s "waters of the United States",
the lake clearly falls within the definition of cooling lake as that
term is defined in the Steam Electric Power Generating Plant Source
Category Effluent Guidelines and Standards, 40 C.F.R. Part 423, 30
F.R. 36186, October 8, 1974. A "cooling lake" is defined in such regu-
lations as any man made water impoundment which "impedes the flow" of a
navigable stream. (40 CFR §423.11(n)) McDavid Branch may be "a water
of the United States", and if so, is a navigable stream within the
meaning of 40 CFR Part 423.
Therefore, EPA may have jurisdiction to issue a permit regulating
discharges of pollutants into Coffeen Lake should the finder of fact,
applying the statutory and regulatory test to the facts of this case, so
determine.
We express no view as to the validity of the Illinois statute de-
+
fining "waters of the State". This issue is presently before the
Illinois Appellate Court and it would be inappropriate for us to comment
on it at this time. Further, "waters of the State" is not a term used
in the Act and we have no particular expertise"in its interpretation.
Dated:
. APR
Robert V. Zenel
General Counsel
202
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF LAW PURSUANT TO
40 C.F.R. Section 125.36(m)
No. 8
In the matter of National Pollutant Discharge Elimination System
permit for Jones & Laughlin Steel Corporation, Hennepin Works Division,
Hennepin, Illinois, NPDES Permit No. IL-0002631, Case Number NPDES-V-011
(AH), the Presiding Officer has certified two issues of law to the Office
of General Counsel for decision pursuant to 40 C.F.R. Section 125.36(m)
(39 FR 27078, July 24, 1974). The parties, having had the opportunity
to provide written briefs in support of their respective positions,
present the following issues:
ISSUE OF LAW NUMBER I
QUESTION PRESENTED
"Should the permit include a "force majeure" clause which would
excuse the discharger from responsibility if it failed to meet any of
the permit requirements due to factors beyond its control?"
CONCLUSION
EPA has statutory authority, under the Federal Water Pollution
Control Act, to issue a permit containing such a provision, but the
exercise of this authority is a matter within the discretion of the
203
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Regional Administrator or, in the case of appeal under 40 CFR §
125.36(n), the Administrator.
As indicated in the Decision of the Assistant Administrator for
Enforcement and General Counsel No. 1 (September 5, 1974), permits may
be issued containing such conditions as the Administrator or Regional
Administrator determines, after opportunity for a public hearing. The
application of these principles in a particular permit proceeding involves
issues of fact and policy beyond the scope of matters of law referable
pursuant to 40 CFR §125.36(m).
ISSUE OF LAW NUMBER II
QUESTION PRESENTED
"Is the use of deep well disposal systems a proper subject for
regulations by NPDES permits?"
CONCLUSION
Disposal of pollutants into wells is subject to regulation
through conditions in an NPDES permit issued for an associated surface
water discharge. See 40 CFR §125.26(a).
The issue is discussed in the Decision of the General Counsel
No. 6 (April 8, 1975), a copy of which is attached.
/jpn * .
Dated: l ^ 1975
\w
M?/C
Robert V. Zener /
General Counsel
204
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
DECISION OF THE ASSISTANT ADMINISTRATOR FOR ENFORCEMENT
AND GENERAL COUNSEL ON MATTERS OF LAW PURSUANT TO
40 C.F.R. §125.36(m)
No. 9
In the matter of National Pollutant Discharge Elimination
System Permit for North American Coal Corporation, Seward,
Pennsylvania, (NPDES Permit Nos. PA 0002119, PA 0002117), the
Regional Administrator has certified one issue of law to the
Assistant Administrator for Enforcement and General Counsel
for decision pursuant to 40 C.F.R. §125.36(m) (39 FR 27078,
July 24, 1974). The parties, having had the opportunity to
provide written briefs in support of their respective positions,
present the following issue:
ISSUE OF LAW NUMBER I
Question Presented
"Should EPA hold coal industry permits in abeyance until
national standards are promulgated for the coal industry?"
Conclusion
This question is not a question of law, but rather is a
question relating to the discretion of the agency. EPA has the
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clear statutory authority to issue permits prior to the promulgation
of effluent regulations pursuant to Section 304(b)(l)(A) of the
Act.
Discussion
This question has previously been answered in Decision
of the Assistant Administrator for Enforcement and General
Counsel No. I, Issue of Law No. 1, copy attached.
APR 2 5 1975
Date
Robert V. Zen
General Couns
206
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS
OF LAW PURSUANT TO 40 C.F.R. §125.36(m)
No. 10
In the matter of National Pollutant Discharge Elimination
System Permit for Western Kraft Corporation, LA-0020800, the
Regional Administrator has certified one issue of law to the
Assistant Administrator for Enforcement and General Counsel for
decision pursuant to 40 C.F.R. §125.36(m)(39 F.R. 27078,
July 24, 1974). The parties, having had the opportunity to
provide written briefs in support of their respective positions,
present the following issue:
ISSUE OF LAW NO. I
Question Presented
"Will existing, effective permits be amended automatically
to reflect any changes in the guidelines resulting from the resolution
of the pending guideline litigation?"
Conclusion
No. The Administrator is not required by applicable law
to amend permits, and will not automatically amend permits, to
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reflect changes in effluent limitations and guidelines resulting
from resolution of pending litigation challenging those effluent
regulations. However, as a matter of sound discretion, the Agency
will consider requests for modification of a permit where
modification of a regulation issued pursuant to Sections 301
and 304 results from a court order in the manner specified in the
attached memorandum from the Assistant Administrator for Enforcement
and General Counsel, dated December 23, 1974.
MAY 21975
Dated:
Robert V. Zener
General Counsel
208
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 C.F.R. Section 125.36(m)
___ No. 11
In the matter of National Pollutant Discharge Elimination
System permit for Christopher Coal Company, Consolidation Coal
Company Inc. #93 Jordan Mine, Hagans Shaft Pump, Osage, West
Virginia, NPDES Permit No. WV 0004057, the Presiding Officer
has certified one issue of law to the Office of General Counsel
for decision pursuant to 40 C.F.R. Section 125.36(m) (39 FR
27078, July 24, 1974). The parties, having had the opportunity
to provide written briefs in support of their respective posi-
tions, present the following issue:
QUESTION PRESENTED
"Should final compliance be achieved by July 1, 1977 rather
than September 16, 1974, the effective date of the permit?"
CONCLUSION
The Agency has statutory authority to impose, as a con-
dition of an NPDES permit, a compliance date prior to July 1,
1977. The propriety of the compliance date in this, or any
other particular permit, however, is a question of fact rather
than a matter of law.
209
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DISCUSSION
In section 301 (b) of the Federal Water Pollution Control
Act Amendments of 1972, Congress provided that:
In order to carry out the objective of
this Act there shall be achieved —
(1)(A) not later than July 1, 1977,
effluent limitations...which shall re-
quire the application of the best prac-
ticable control technology currently
available as defined by the Administra-
tor pursuant to section 304(b) of this
Act,.... (Emphasis added.)
To implement this requirement, the Administrator is auth-
orized to issue National Pollutant Discharge Elimination Sys-
tem permits "upon the condition that such discharge will meet
... all applicable requirements under sections 301, 302, 306,
307, 308 and 403 of this Act...." Section 402(a) (1). Prior
to the promulgation and taking effect of the effluent limita-
tions described in section 301(b)(l)(A) representing "best
practicable control technology" the Administrator may issue
permits with "such conditions as the Administrator determines
are necessary to carry out the provisions of this Act." Sec-
tion 402 (a) (1) .
Whether the permits which the Administrator issues con-
tain effluent limitations derived from regulations promulgated
pursuant to Sections 301 and 304 or, prior to promulgation of
applicable effluent limitations, conditions determined to be
210
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necessary to carry out the provisions of the Act, it is clear
that Congress contemplated the July 1, 1977 date set out in
Section 301(b)(1)(A) for best practicable treatment as the
outside deadline. All point sources must achieve the level
of treatment specified in section 301(b)(1)(A) by that date
but the Administrator is empowered to require earlier compli-
ance where possible.
The legislative history of the 1972 Act, as well as the
clear statutory language, supports the Administrator's auth-
ority to impose earlier compliance than 1977.
Senator Muskie, during the Senate consideration of the
conference reports explained:
As far as uniformity and finality are
concerned, the conference agreement pro-
vides that each polluter within a category
or class of industrial sources will be re-
quired to achieve nationally uniform efflu-
ent limitations based on "best practicable"
technology no later than July 1, 1977. This
does not mean that the Administrator cannot
require compliance by an earlier date; it
means that these limitations must be achieved
no later than July 1, 1977, that they must
be uniform, and that they will be final upon
the issuance of a permit under section 402
of the bill. (Emphasis added.)
Committee on Public Works, 93d Cong., 1st Sess., A Legislative
History ojf the Water Pollution Control Act Amendments of_ 1972
at 162 (Comm. Print 1973).
211
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Accordingly, it is my opinion that the Administrator may in
a proper case (as, for example, if the applicant for an NPDES
permit were already achieving the effluent limitations specified
as attainable by regulations defining "best practicable tech-
nology currently available") impose a compliance schedule re-
quiring attainment of effluent reduction to the level specified
in section 301(b)(l)(A) prior to July 1, 1977.
Robert V. Zener
General Counsel
Dated:
MAY? 1975
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 C.F.R. §125.36(m)
No. 12
In the matter of National Pollutant Discharge Elimination
System Permit for the Greater Anchorage Borough, John M. Asplund
Facility, Anchorage, Alaska, NPDES Permit No. AK-002244-1, the
Presiding Officer has certified one issue of law to the Office
of General Counsel for decision pursuant to 40 C.F.R. §125.36(m)
(39 F.R. 27078, July 24, 1974). The parties, having had the
opportunity to provide written briefs in support of their re-
spective positions, present the following issue:
QUESTION PRESENTED
"Should the effluent limitation for the Greater Anchorage
Area Borough municipally owned domestic waste treatment system
which discharges directly to the ocean (Cook Inlet) include
that minimum level of secondary treatment as defined in 40
C.F.R., Part 133?"
CONCLUSION
An NPDES permit issued to a municipally owned domestic
waste treatment system such as the permittee's facility must
contain effluent limitations representing attainment not later
213
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than July 1, 1977 of secondary treatment as defined by the
Administrator in 40 C.F.R., Part 133. The fact that the
permittee discharges into the ocean does not exempt the
facility from this requirement found in section 301(b) (1) (B)
of the 1972 Act.
DISCUSSION
The Federal Water Pollution Control Act, section 301(b)(l)(B)
provides that there shall be achieved "for publicly owned treat-
ment works in existence on July 1, 1977,...effluent limitations
based upon secondary treatment as defined by the Administrator
pursuant to section 304(d)(1) of this Act." In 40 C.F.R., Part
133, the Administrator has defined those parameters and limita-
tions representing secondary treatment which are applicable to
publicly owned treatment works under section 301(b) (1) (B) .
All parties agree that the Greater Anchorage Borough's John M.
Asplund facility is a publicly owned treatment works.
No exception from the requirements of secondary treatment
as thus defined may be made for facilities which, as does the
permittee's, discharge into the ocean.
First, the regulations defining the requirements of secon-
dary treatment (40 C.F.R. Part 133) do not provide for varia-
tions in the minimum level of treatment based on the location
214
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of the treatment works or the characteristics of the receiving
waters. The Agency, of course, is bound by its own regulations
and, hence, may not authorize ad_ hoc deviations from them.
See e.g., Service v. Dulles, 354 U.S. 363 (1959).
Second, the Act does not authorize the Agency either to
grant individual exemptions from the required application of
secondary treatment, based on the "assimilative capacity" of
the receiving waters, or to distinguish in the regulations
themselves between municipal plants located on oceans and those
located elsewhere.
Both the Act and its legislative history show that the
standards of "best practicable control technology currently
available" (applicable to industrial discharges) and "secondary
treatment" (applicable to municipal plants) are to be technology
based rather than based on water quality effects. The Report
accompanying the Senate version of the 1972 Amendments makes
this clear:
The application of Phase I technology to
industrial point sources is based on the
control technologies for those sources and
to publicly-owned treatment works is based
upon secondary treatment. It is not based
upon ambient water quality considerations.
Committee on Public Works, A Legislative
History of the Water Pollution Control Act
Amendments of 1972, at 1461 (Comm. Print
1973) (hereinafter Leg. Hist.).
215
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In addition, §304(d) (1) requires the Administrator to
define "the degree of effluent reduction attainable through
the application of secondary treatment." This language, like
the language of §304(b)(l) (requiring the Administrator to
define "the degree of effluent reduction attainable through
the application of the best practicable control technology
currently available"), is basically tied to finding a level
of technology rather than a level of ambient harm.
Secondary treatment has had an understood meaning in the
trade and this meaning relates to levels of pollutant reduc-
tion in the effluent, not to levels of ambient water quality.
Congress1 use of the term "secondary treatment" in section
304(d) (1) reflects this understood meaning. For example the
Senate Committee Report quoted above states:
In primary treatment of sewage, between
30 percent and 50 percent of organic pol-
lution is removed. With secondary treat-
ment, between 50 and 90 percent is re-
moved. Leg. Hist, at 1474.
Moreover, the Committee Report accompany the House bill
(H.R. 11896) states:
***Secondary treatment as considered in
the context of a publicly-owned treat-
ment works is generally concerned with
suspended solids and biologically de-
gradable, oxygen demanding material (BOD).
(Leg. Hist, at 788.)
216
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As a technology-based standard secondary treatment regula-
tions must be nationally uniform. The following discussion in
the Conference Committee Report concerning "best practicable"
and "best available" limitations is equally applicable to the
regulations governing municipal facilities:
Except as provided in section 301 (c), the
intent of the Conferees is that effluent
limitations applicable to individual point
sources within a given category or class
be as uniform as possible. The Administra-
tor is expected to be precise in his guide-
lines under [section 304(b)] so as to as-
sure that similar point sources with simi-
lar characteristics, regardless of their
location or the nature of the water into
which the discharge is made, will meet
similar effluent limitations.
Leg. Hist, at 309.
As with the corollary requirement of best practicable con-
trol technology, secondary treatment is a minimum, to be varied
only where additional levels of treatment are necessary to meet
water quality standards.*
* Section 403 of the Act, which provides for the establishment
of ocean discharge guidelines and for consideration of these
guidelines in the issuance of permits under Section 402, appears
to be analogous in its effect to water quality standards. That
is, permit conditions more stringent than those required under
Sections 301, 304 and 306 may be imposed in particular permits
on the basis of Section 403 guidelines (for example, those on
mercury or cadmium - 40 CFR 227.22). However, less stringent
limitations contained in the ocean dumping guidelines do not
authorize deviations from secondary treatment anymore than do
lenient water quality standards.
217
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It might be observed that the case against a blanket
requirement of secondary treatment was ably made to the
Congress by Mr. Charles V. Gibbs, Executive Director, Munici-
pality of Metropolitan Seattle, during the original Senate
hearings on S. 523, one forerunner of the present legislation.
His testimony shows a clear understanding of the distinction
between primary and secondary treatment, and the impact which
a requirement of secondary treatment would have:
...We have four primary treatment plants
discharging chlorinated effluent into Puget
Sound through deep ocean outfalls.... If
a national effluent standard necessitating
secondary treatment is established, Seattle
Metro would have to spend $38 million in
construction costs and another $1.25 mil-
lion per year for operating costs (based
on 1970 costs)....
Despite Mr. Gibbs' arguments, the Congress did, in fact,
in §301 (b) (1) (B), and in §304(d)(l), establish a uniform
national requirement of secondary treatment for municipal
waste water treatment plants. Because these arguments were
rejected by the Congress, the Environmental Protection Agency
has no discretion to reverse this decision.
Robert" V. Zener /
General Counsel
Dated:
MAY? 1975
218
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
DECISION OF THE GENERAL COUNSEL
ON MATTERS OF LAW PURSUANT
TO 40 C.F.R. §125.36(m)
No. 13
In the matter of National Pollutant Discharge Elimination
System Permit for Commonwealth Edison Company, IL-0003042,
the Regional Administrator has certified one issue of law to the
Assistant Administrator for Enforcement and General Counsel for
decision pursuant to 40 C.F.R. §125.36(m)(39 F.R. 27078, July 24,
1974). The parties, having had the opportunity to provide writ-
ten briefs in support of their respective positions, present the
following issue:
ISSUE OF LAW NO. I
Question Presented
"Was the permit limitation of 0.2 mg/1 total residual chlorine
legally applied on the basis of Illinois law and regulations?"
Conclusion
Yes, if there is an adequate factual basis to support the
Regional Administrator's determination that the limitation is neces-
sary to meet Illinois water quality standards.
219
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Discussion
Though the question presented in this request concerns the
Agency's authority to impose a specific limitation for a specific
parameter, the fundamental issue raised by the parties is the
general authority of the Administrator to interpret and apply
State water quality standards. Both parties argue that a correct
interpretation of Illinois law and regulations, as well as avail-
able scientific evidence, support their position. Both parties
address, to some extent, the question of State interpretation of
its own laws and regulations.
Section 401 of the Federal Water Pollution Control Act affords
States an opportunity to prescribe the applicability of State law
to discharges which require a Federal license or permit, including
permits issued by the Administrator under section 402 of the Act.
Section 401 provides for certification by a State after public
notice and, where appropriate, public hearing, that the discharge
for which a permit is sought will comply with sections 301, 302,
306, and 307 of the Act. Section 301(b)(l)(C) requires dischargers
to achieve by 1977 effluent limitations necessary to meet State
water quality standards. Section 401(d) provides that certifications
shall set forth "effluent limitations and other limitations, and
monitoring requirements" necessary to assure that the applicant com-
plies with the requirements of the Act and that such limitations
220
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shall become a condition on any Federally-issued permit. Sections
301(b)(l)(C) and 401 thus insure that States may require inclusion
of limitations, in permits issued by the Agency under section 402,
necessary to meet applicable State water quality standards.
The provisions of section 401 have been implemented in regula-
tions appearing at 40 C.F.R. Part 123. Section 123.2 specifically
defines the required contents of a certification. It is not clear
from the record before me whether a certification requiring limita-
tions on total residual chlorine exists in this case. The existence
of such a certification is a matter of fact appropriately established
by presentation of appropriate documentary evidence in a fact-finding
hearing. If such a document, purporting to be a certification, and
including effluent limitations and other limitations, exists in
accordance with the provisions of section 401 of the Act and 40 C.F.R.
Part 123, then the Administrator must adopt those limitations and in-
clude them as a condition in the subject permit pursuant to section
401(d).
Where such a document does not exist, however, the Administrator
must himself, pursuant to section 301, interpret and apply State
water quality standards. Section 301(b)(l)(C) requires the achieve-
ment, by 1977, of "any more stringent limitation, including those
necessary to meet water quality standards, . . . established pursuant
to any State law or regulations ... or required to implement any
applicable water quality standard established pursuant to this Act."
221
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Section 402 of the Act requires inclusion of conditions in permits
to assure that the requirements of section 301 will be met.
In applying water quality standards in the absence of a State
certification, the Administrator is entitled to presume the validity
of State established regulations and to assume that such regulations
have the substantive content that appears from the plain language of
the provisions. Section 203 of the Illinois regulations quite unam-
biguously declares that all waters of the State shall be free from
"matter in concentrations or combinations toxic or harmful to human,
animal, plant or aquatic life of other than natural origin." \J
Further, in subsection (h), it unambiguously defines the level of
toxicity as 1/10 of the concentration at which 1/2 of the test
specimens die after a 48-hour bioassay. 2J There is nothing on the
face of the regulations which requires extensive resort to its "legis-
lative history" or to suggest, as the permittee argues, that they
should be given no substantive effect at all.
The Illinois regulations thus appear to be clear on their face
and may be applied by the Administrator. Whether or not the specific
limitation of 0.2 mg/1 total residual chlorine has been lawfully
applied in this proceeding, however, is not a question of law but of
fact, which is properly the subject of an adjudicatory hearing.
_!/ Chapter 3, Rules and Regulations of the Illinois Pollution
Control Board, Rule 203(a).
2] "Any substance toxic to aquatic life shall not exceed one-tenth
of the 48-hour median tolerance limit (48-hour TLM) for native
fish or essential fish food organism." Id., Rule 203(h).
222
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At such a hearing, the applicant may adduce evidence that chlorine
discharges need not be limited to a concentration of 2 mg/1 total
residual chlorine in order to avoid harm to humans, animals, plants
or aquatic life in accordance with Section 203 of the Illinois Water
Quality Standards.
/ ' '—\
Robert "V. Zener '
General Counsel l
Dated: MAY 19 1975
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS
OF LAW PURSUANT TO 40 C.F.R. §125.36(m)
No. 14
In the matter of National Pollutant Discharge Elimination
System permit for Indianapolis Power and Light Company, Petersburg,
Indiana (NPDES Permit No. IN0002887), the presiding officer has
certified one issue of law to the Assistant Administrator for
Enforcement and General Counsel for decision pursuant to 40 C.F.R.
§125.36(m)(39 F.R. 27078, July 24, 1974). The parties and other
interested persons, having had the opportunity to provide written
briefs in support of their respective positions, present the
following issue:
ISSUE OF LAW NO. I
Question Presented
"Whether EPA has authority to require conditions in the subject
permit more stringent than those provided in the EPA Effluent Guidelines
and Standards?" This question consists of three particular issues
which the staff of EPA characterizes as follows:
224
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(1) Does the permit unreasonably impose discharge
limitations at outfall 0001 for oil and grease which
are more stringent than those contained in U.S. EPA's
Effluent Guidelines and Standards?
(2) Issues 2 and 3 present the same question with
respect to total suspended solids and chlorine
respectively.
Conclusion
EPA has not only the authority but the obligation to include
conditions in permits more stringent than those provided in Effluent
Guidelines and Standards promulgated by the Agency under sections 301,
304 and 306 of the Federal Water Pollution Control Act where such
conditions are required by the terms of a State certification provided
pursuant to section 401 or required to implement any applicable water
quality standard established pursuant to the Act.
Discussion
This question is perhaps best addressed by a review of Exhibit A
attached to the brief submitted by EPA Region V and the legal effect
of the attachment both under sections 301 and 401 of the Act. The
subject attachment is a letter from the State of Indiana, State Board
of Health to the Environmental Protection Agency, Region V. The
225
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letter in pertinent part states: "[e]nclosed is a summary of
the permit limitation guidelines the Industrial Waste Disposal
Section intends to follow in drafting NPDES permits. Some
industrial categories will be exceptions (i.e. stone mills and
coal mines). Special consideration will be given to the 5 mg/1
limit on BOD and suspended solids depending on the individual
stream and type of waste discharged."
Appended to the Indiana letter was a list of varying permit
limitations including limitations on BOD, fecal coliform, pH,
phosphorus, oil and grease and thermal effluent. It indicated
that specific limitations on toxic substances and heavy metals
would follow. (A copy of the attachment to tlie Indiana letter
is attached hereto).
Neither the letter nor its attachment from the State Board of
Health purports to be a certification pursuant to section 401 of
the Act. The letter does not, as is required by section 401, "set
forth any effluent limitations and other limitations and monitoring
requirements necessary to assure that any applicant for a Federal
license or permit will comply with [applicable requirements]."
Further, the letter states clearly that the permit limitations are
226
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mere guidelines and do not refer to either technology based
limitations or water quality standards. At best, it is an
interpretation by the State of Indiana of either its water
quality or technology standards, which may be used by the
Environmental Protection Agency to assist it in determining
limitations required to implement any more stringent
standards, pursuant to section 301(b)(1)(C).
While the State of Indiana has expressed to the Environmental
Protection Agency an interpretation of its water quality or technology
standards, such interpretation has not, in the cited letter, been
presented to the Agency in the form of a certification pursuant to
section 401 of the Act. Thus, EPA is not required to include such
conditions in its permits. Rather, the Agency must make an
independent determination of what permit limitations are to be
required in an individual permit proceeding in order to implement
applicable water quality standards. This, of course, entails
factual determinations, applying the laws of the State of Indiana
to the circumstances of the particular discharge in question. Thus,
with respect to all three subquestions within this legal question,
227
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the requestor is entitled to an adjudicatory hearing to determine
whether any more stringent limitations pursuant to section 301(b)(l)(C)
are required in order to implement water quality standards and,
if so, what the substance of those limitations should be.
Robert V. Zener
General Counsel
Dated:
MAY 2 1 1975
228
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INDUSTRIAL HASTE SF.CTIOH - Permit Limitations
Final Limits
1. BOD and Suspended Solids
Receiving Stream Dilution Daily Average Daily Maximum
^1:1 and flow1:1 10 mg/1 15 mg/1
>3:1 20 mg/1 30 mg/1
2. Fecal Coliform
A. Sewage Treatment Facility
Limit to 0.5 ppm C12 until July 1, 1977, then limit fecal coliform to
200/100 ml daily average and 400/100 ml daily maximum
B. Industrial Discharge - 1000/100 ml daily average and 2000/100 ml daily maxim
3. pH - 6.0 to 9.0
4. Phosphorus
If "P" discharge is> 10 Ibs. daily to a lake or within 40 miles upstream
of a lake or reservoir, then "P" limits must be 1 mg/1 daily maximum or
80 percent reduction, whichever is more stringent.
Otherwise, no "P" limits should be applied unless at our discretion iu
protect the stream or guidelines specify P limits.
5. Oil and Grease
A. Cooling water discharge or other discharge where oil is accidentally
introduced.
USG - 10 rng/1 daily maximum
B. Process Oil
Limit to 10 mg/1 daily average and 15 mg/1 daily maximum
6. Thermal
Apply no thermal limits unless necessary to protect water quality standards.
Should consider cooling through lengths of underground sewer etc. Thermal
problems will normally be most critical in summer and fall low flow periods.
7. Toxic Substances - heavy metals
To follow
229
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 C.F.R. §125.36(m)
No . 15
In the matter of National Pollutant Discharge Elimination System
Permit for Heinz, U.S.A., Muscatine, Iowa (IA-0001741), the Presiding
Officer has certified two issues of law to the Assistant Administrator
for Enforcement and General Counsel for decision pursuant to 40 C.F.R.
§125.36(m)(39 F.R. 27078, July 24, 1974). The parties, having had the
opportunity to provide written briefs in support of their respective
positions, present the following issues:
ISSUE OF LAW NO. I
Question Presented
"Must the permit provide for a means of excepting the Company for
punitive action should an accident or spill occur which is beyond the
control of the company?"
Conclusion
EPA has statutory authority, under the Federal Water Pollution
Control Act, as amended (the "Act"), to issue a permit containing such
a provision, but the exercise of this authority is a matter within the
discretion of the Regional Administrator or, in the case of appeal
230
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pursuant to 40 C.F.R. §125.36(n), the Administrator. As indicated in
Decision of the Assistant Administrator for Enforcement and General
Counsel No. 1 (September 5, 1974) and Decision of the General Counsel
No. 8 (April 14, 1974), permits may be issued containing such
conditions as the Administrator or Regional Administrator determines,
after opportunity for hearing. The application of these principles to
particular permit proceedings involve issues of fact and policy beyond
the scope of matters of law referrable to pursuant to 40 C.F.R.
§125.36(m).
ISSUE OF LAW NO. II
Question Presented
"Must the permit state that data submitted by the Company
through its monitoring program and statements submitted by the Company
to EPA will not be used as evidence against Company in a civil court
proceeding?"
Conclusion
The Act neither specifically authorizes nor prohibits the use
of such data in enforcement proceedings. However, it is a reasonable
interpretation of the relevant provisions of the Act to conclude
that EPA may use such data in enforcement proceedings under section 309
of the Act.
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3
Discussion
Both sections 309 and 402 of the Act are silent with regard to
the specific question raised. However, section 402(a)(2) of the Act
permits the Administrator to include conditions in permits "on data
and information collection, reporting, and such other requirements
as deems appropriate." Section 402(a)(3) provides that the permit
program of the Administrator "shall be subject to the same terms,
conditions, and requirements as apply to a State permit program and
permits issued thereunder...." Section 402(b) set forth the terms,
conditions and requirements that apply to State programs. Section 402
(b)(2)(A) requires that authority exist to issue permits which "apply,
and insure compliance with, all applicable requirements of section 308"
while section 402(b)(2)(B) requires authority to "inspect, monitor, enter,
+
and require reports to at least the same extent as required in section
308..." Section 402(b)(7) requires authority to "abate violations of the
permit or the permit program, including civil and criminal penalties and
other ways and means of enforcement." Further,- section 308(a) of the
Act provides that:
[w]henever required to carry out the objectives
of this Act, including but not limited to...
(2) determining whether any person is in violation...
of this Act... (A) The Administrator shall require
the owner or operator of any point source to
232
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(i) establish and maintain such records, (ii) make
such reports, (iii) install, use and maintain such
monitoring equipment or methods (including where
appropriate, biological monitoring methods)
(iv) sample such effluent (in accordance with such
methods, at such locations, at such intervals, and
in such manner as the Administrator shall prescribe),
and (v) provide such other information as he may
reasonably require ...
Section 309, the federal enforcement provision of the Act, provides
that "whenever, on the basis of any information available to him,
the Administrator finds that any person is in violation of
sections 301, 302, 306, 307, or 308 of this Act, or is in violation
of any permit condition or limitation implementing any of such
sections in a permit issued under section 402 of this Act by him or
by a state, he shall [take appropriate enforcement action]."
Section 309(a)(3).
Thus, the statute clearly establishes the right of the
Administrator to gather data and require reports from dischargers
and establishes the Administrator's obligation to take enforcement
action whenever he finds, on the basis of any information available
to him, a person in violation of the Act.
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Clearly, Congress, which gave to the Administrator the right to
require the submission of data and take enforcement action on the
basis of any information, intended that required data submissions
would be includable within the term "any information" usable by the
Administrator to both find violations and take enforcement action.
To require a permit condition as demanded by Heinz would render the
gathered data useless for one of its intended purposes, to determine
whether a person is in violation of the Act (section 308), a result
which could not have been intended.
Dated:
General Counsel
234
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JUL 1 1975
MEMORANDUM
To: Regional Administrator
Region V
From: General Counsel
Subject: General Counsel Decision No. 16
On May 30, 1975, I issued an opinion of law pursuant to 40 C.F.R.
§125.36(m) concerning NPDES Permit No. IL 0000701, Illinois Power
Company, Wood River Generating Station. It has since come to my
attention that the questions of law presented In the documents trans-
mitted to me were not intended by the Region to be referred for deci-
sion pursuant to 40 C.F.R. 125.36(m), and that the permittee's request
for an adjudlcatory hearing was subsequently granted. It appears that
the failure of either party to submit briefs In accordance with 40
C.F.R. 8125.36(m)(2) resulted directly from the belief by the parties
that the issues had not been referred.
I believe that this absence of a briefing opportunity constitutes
a procedural defect justifying withdrawal of the opinion and the
opinion is hereby withdrawn. General Counsel Opinion No. 16 need not
therefore be relied upon by you as provided in 40 C.F.R. §125.36(m)(4).
I should point out, however, that the principles expressed in General
Counsel Decision No. 13 continue in effect.
•i
W*V
R. V- Zeifer
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
DECISION OF THE GENERAL COUNSEL
ON MATTERS OF LAW PURSUANT
TO 40 C.F.R. §125.36(m)
No. 16
In the matter of National Pollutant Discharge Elimination System
Permit No. IL 0000701 for the Illinois Power Company, Wood River
Generating Station, the Director of the Enforcement Division has
certified one issue of law to the Assistant Administrator for Enforce-
ment and General Counsel for decision pursuant to 40 C.F.R. §125.36(m)
(39 F.R. 27078, July 24, 1974).- The parties having had the oppor-
tunity to provide written briefs in support of their respective
positions,•present the following issue:
ISSUE OF LAW NO. 1
Question Presented
"Can the Agency impose a maximum limitation of 0.2 mg/1 total
chlorine residual when that limitation is not provided for by the
Federal Water Pollution Control Act, as amended, or by the Federal
Regulations which provide for a maximum concentration of 0.5 mg/1
free available chlorine?"
_!/ Subsequent to the referral of the issue of law in connection with
Permit No. IL 0000701, the Regional Enforcement Director advised Illinois
Power Company that the identical issue would be referred in a second case,
Permit No. IL 0001554, upon receipt of the Company's concurrence. So far
as appears, concurrence was not received and no formal referral appears
in the file. Nevertheless, while this Decision governs only Permit No.
IL 0000701, the principle applies to proceedings in connection with Permit
No. IL 0005144.
236
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Conclusion
Yes, in accordance with the principles set out in General Counsel
Decision No. 13, May 19, 1975. Neither of the parties to this proceed-
ing submitted briefs in support of their position. There is thus no
indication in the documents before me as to the basis for the proposed
limitation, or, other than the fact that it differs from the chlorine
limitation contained in the applicable Federal effluent guidelines
(40 C.F.R. Part 423), the basis of the Requestor's objection. The
question, however, is virtually identical to the one posed in Decision
No. 13. It involves the same type of industrial facility (an electric
generating plant) and precisely the same limitation (0.2 mg/1) on the
same pollutant (total residual chlorine). The facilities are both
located in the same State. In these circumstances, it appears reason-
able to assume that the issues raised in the two proceedings are also
the same. It is therefore my opinion that the principles set forth in
Decision No. 13 should also be followed here.
Date
3 01975
237
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, B.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 C.F.R. §125.36(m)
No. 17
In the matter of National Pollutant Discharge Elimination System
permit for United States Steel Corporation, Joliet Works, Joliet,
Illinois (NPDES permit No. IL-0002674), the presiding officer has
certified two issues of law to the Assistant Administrator for
Enforcement and General Counsel for decision pursuant to 40 CFR
§125.36(m)(39 F.R. 27078, July 24, 1974). The parties and other
interested persons, having had the opportunity to provide written
briefs in support of their respective positions, present the
following issues:
ISSUE OF LAW NO. I
Question Presented
"Whether the effluent limitations and monitoring requirements
of the Water Pollution Control Regulations issued by the Illinois
Pollution Control Board must, as a matter of law, be incorporated
as conditions of the National Pollutant Discharge Elimination
238
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System (NPDES) permit issued to United States Steel Corporation-
Joliet Works, and if such provisions must, as a matter of law,
be incorporated as conditions of the permit, must other provisions
of said Regulations and the statutes on which they are based
(the Illinois Environmental Protection Act, 111. Rev. Stat.
Ch. Ill 1/2 §1001, et seq.) also be incorporated as conditions
of the permit, and does that preclude the introduction of
evidence relating thereto?"
Conclusion
EPA is obligated to include conditions in permits more stringent
than those which would be provided pursuant to the technology require-
ments of either section 402(a) of the Federal Water Pollution Control
Act, as amemded (the Act), or Effluent Guidelines and Standards
promulgated by the Agency pursuant to sections 301, 304, and 306 of
the Act, where such more stringent conditions are required by the
terms of a State certification provided pursuant to section 401 of
the Act or required to implement any applicable water quality or
technology standard properly established by the State. If such
effluent limitations and monitoring requirements are set forth
to EPA in a certification by the State pursuant to section 401,
section 401(d) provides that they shall "become a condition on any
Federal license or permit" without any further Federal action or
review. In the absence of a State certification pursuant to
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section 401 of the Act, EPA must, in lieu of the State, itself
interpret and apply relevant State regulations and statutes pursuant
to sections 301 and 402 to determine the appropriate effluent
limitations to be contained in a permit. In such an event, evidence
concerning the application by EPA of the State statutes or regulations
may be taken at an adjudicatory hearing held pursuant to 40
CFR §125.36.
Discussion
This question is essentially the same as the questions raised
and addressed in decisions of the General Counsel on Matters of
Law, No. 13 (May 19, 1975) and No. 14 (May 21, 1975).
We have concluded that in the absence of a State certification
pursuant to section 401, containing with specificity those
requirements of State law properly subject to certification, this
Agency's regulations require that an adjudicatory hearing, if
requested, be held at which evidence may be introduced concerning
the application by EPA of such State law or regulation.
240
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With regard to the issue of "procedural due process" raised
by the requestor, this is a matter of Constitutional law properly
addressed in the Circuit Courts of Appeal and not in this proceeding,
ISSUE OF LAW NO. II
Question Presented
"Must EPA, as a matter of law, include in all permits those
conditions that the Corps of Engineers considers to be necessary
to insure that navigation and anchorage will not be impaired?"
The parties have stipulated that such a condition is included in
the permit at the request of the Corps of Engineers.
Conclusion
The Secretary of the Army, acting through the Chief of the
Engineers, determines what conditions are necessary in NPDES
permits to insure that anchorage and navigation will not be
substantially impaired as a result of permit issuance pursuant
to section 402(b)(6) of the Act. The Administrator must, pursuant
to that section and regulations promulgated by this Agency, include
those conditions specified by the Chief of the Engineers in permits
issued by him.
241
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Discussion
Section 402(b) (6) of the Act provides that "no permit will
be issued if, in the judgment of the Secretary of the Army, acting
through the'Chief of Engineers, after consultation with the
Secretary of the Department in which the Coast Guard is operating,
anchorage and navigation of any of the navigable waters would be
substantially impaired thereby." This Agency has promulgated
regulations concerning permit conditions which will be included
in permits issued by EPA. 40 CFR §125.22(b) provides: "permits
shall contain such other conditions as the District Engineer of
the Corps of Engineers considers to be necessary to insure that
navigation and anchorage will not be substantially impaired."
Clearly, the statutory language which grants to the Secretary of
the Army the right to prevent a permit from being issued also
includes the right to take a less drastic step: the imposition
of conditions on permits designed to prevent the occurence of
events which would justify exercise of an absolute veto. Thus,
section 402 contemplates, and regulations of the Environmental
Protection Agency require, that the permit contain any conditions
furnished to this Agency by the District Engineer which, in his
opinion, are necessary to insure that navigation and anchorage
will not be substantially impaired.
242
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To the extent that the requestor claims that the relevant
regulations are invalid or deprive the requestor of due process,
before EPA, these questions are outside the scope of the legal
referral procedure and are best addressed in the Circuit Courts
of Appeal and not in this proceeding. To the extent the requestor
claims that the Secretary of the Army has deprived him of procedural
due process in the establishment of the specific conditions, EPA
is not a proper party to that dispute nor may EPA's administrative
forum be used to determine issues not relevant to the considerations
before this Agency. The requestor has adequate remedies available
against the Secretary of the Army pursuant to the Administrative
Procedure Act.
Robert V. Zenerf
General Counsel
JUN16 1975
Date:
243
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE GENERAL COUNSEL
ON MATTERS OF LAW PURSUANT
TO 40 C.F.R. §125.36(m)
No. 18
In the matter of the National Pollutant Discharge Elimination
System permits for Bethlehem Steel Corporation, Burns Harbor Plant,
Case No. NPDES-V-030(AH), permit number IN-0000175, and United
States Steel Corporation, Gary Works, Case No. NPDES-V-027(AH),
permit number IN-0000281, the presiding officer has certified an
issue of law to the General Counsel for decision pursuant to
40 C.F.R. §125.36(m) (39 F.R. 27078, July 24, 1974). The parties
and other interested persons, having had the opportunity to provide
written briefs in support of their respective position, present the
following issue:
ISSUE OF LAW
"Does the Federal Water Pollution Control Act, as amended (the
Act), grant to the Administrator the authority to control or regulate
discharges into deep wells through an NPDES permit issued pursuant to
Section 402 of the Act?"**
Conclusion
This matter is disposed of by the Decision of the General Counsel
No. 6, dated April 8, 1975. That Decision concluded that "the
Environmental Protection Agency has authority to control well injection
* The cases have been consolidated for purposes of this Decision.
** The parties in these cases have formulated the issue in slightly
varying terms. I believe the foregoing statement accurately
presents the issue.
244
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through conditions in NPDES permits issued for dischargers into navigable
waters." 40 C.F.R. §125.26 requires that conditions be included to
control well injection in such cases. Accordingly, although the reason-
ableness of the requirements imposed is properly considered in an
adjudicatory hearing, the conditions complained of are required by the
applicable regulations.
Bethlehem Steel Corporation, in its brief, argues that 40 C.F.R.
§125.26, which requires control of disposable pollutants into wells
through conditions in an NPDES permit issued for an associated surface
water discharge, is contrary to law. While this is a legal question,
it is beyond the scope of the legal referral procedure established
under 40 C.F.R. §125.36(m).
The purpose of the legal referral procedure is to provide guidance
to the presiding officers at hearings and to Regional Administrators
concerning points of regulatory or statutory construction on which the
Agency's position is not clear and which require prompt resolution
before a decision can be rendered in the NPDES permit issuance proceed-
ings. The General Counsel has no authority to strike down duly promul-
gated regulations of the Administrator. The purpose of my review of
the case of United States v. GAF, in Opinion No. 6, was not to pass
judgment on the Administrator's regulation, but to determine whether
the court's order by its terms invalidated that regulation. I
concluded that it did not, and it remains my view that the regulation
must be followed.
245
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To the extent that the Requestor claims that 40 C.F.R. §125.26
is beyond the Agency's authority under law, this question must be
addressed in the appropriate United States Court of Appeals on review
of the Administrator's action in issuing the permit.
ly&L' i/
Robert V. Zene^ ,
General Counsel
Date:
JUN251975
246
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 C.F.R. §125.36(m)
No. 19
In the matter of National Pollutant Discharge Elimination
System Permit No. MD-0021008 for the Greenbriar Sewage Treatment
Plant, Maryland, the presiding officer has certified two legal
issues to the General Counsel for decision pursuant to 40 CFR
§125.36(m) F.R. 27078, July 24, 1974). The parties, having
had the opportunity to provide written briefs in support of
their respective positions, present the following issues:
ISSUE OF LAW NO. I
Question Presented
"Does the Administrator or his designee have the authority
under the Federal Water Pollution Control Act Amendments of 1972
(Public Law 92-500, October 18, 1972) to impose general condition
#18 for the Greenbriar Sewage Treatment Plant for a point of
discharge to an unnamed tributary of Beaver Dam Creek."
247
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General condition #18 provides that: "there shall be at
all times one qualified operator on the treatment site who is
certified by the State of Maryland as a Class A Superintendent."
Conclusion
Pursuant to section 402(a)(2) of the Federal Water Pollution
Control Act, as amended ("The Act"), EPA is authorized to include
in NPDES permits those conditions reasonably determined by the
Regional Administrator to be necessary to ensure compliance with
sections 301, 302, 306, 307, 308 and 403 of the Act. Furthermore,
under-section 402(a)(1), the Agency may, "prior to the taking of
necessary implementing actions relating to all such requirements"
(i.e., sections 301, 302, 306, 307, 308 and 403), include "such
conditions as the Administrator determines are necessary to
carry out the provisions of this Act." Under either of these
provisions of section 402, EPA may include permit conditions
requiring personnel adequately trained and qualified to perform
the operating, maintenance and testing functions necessary to
achieve compliance with the effluent reduction requirements of
section 301 and the monitoring requirements of section 308.
248
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3
Discussion
Section 402(a)(1) of the Act authorizes the Agency to
issue permits upon condition that applicable requirements of
other enumerated sections are met. Section 402(a)(2) sets
forth the conditions which are to be included in NPDES
permits. It requires that EPA impose conditions "to assure
compliance with the requirements" of paragraph (a)(1) which
includes the requirements of sections 301 and 308 of the Act.
40 CFR §125.22(b) provides that permits are to include
"such special conditions as are necessary to insure compliance
with applicable effluent limitations."
In my opinion these provisions of the statute and implementing
regulations authorize operating conditions, including conditions on
treatment plant personnel, which are found to be necessary to
assure compliance with the cited provisions.
Greenbriar Associates argues that the purpose of the Act is
to control the discharge of polluted effluent and that so long as
a facility is complying with the effluent limitations in its
permit, the Agency has no legitimate interest in the employment
qualifications of a discharger's personnel. The contention
overlooks the Agency's interest in avoiding violations of
restrictions on effluent, an interest given statutory recognition
249
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by the provision of section 402(a)(2) authorizing imposition of
conditions which assure compliance with those limitations. So
long as there is a rational connection between the condition
and the assured attainment of the effluent limitations, there
is statutory authority to impose it. The relationship between
plant operators and the plant's assured compliance with
effluent limits would appear to be sufficiently direct that
I cannot say, as a matter of law, that the Agency has no
authority to insist on employment of qualified personnel. I
note, for example, the memorandum dated March 28, 1974 from
the then Assistant Administrator for Enforcement and General
Counsel and the then Acting Assistant Administrator for Air
and Water Programs concerning permit conditions for privately
owned treatment facilities primarily utilized to treat domestic
waste. The memorandum states that "[e]xperience demonstrates
that privately-owned sewage facilities are prone to declining
performance due to poor operations and maintenance. Special
operations and maintenance requirements should therefore be
included in the permit to assure sustained plant performance.
These conditions shall require the permittee to: ...
(b) Provide an adequate operating staff which is duly qualified
to carry out the operation, maintenance and testing functions
250
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required to ensure compliance with permit conditions..." (1)
Greenbriar Associates also contend that the provision
in section 402(a) (2) authorizing the Administrator to impose
"such other requirements as he deems appropriate" does not
(1) There appears to be considerable dispute concerning
whether the treatment plant is publicly or privately owned.
Apparently the facility was privately constructed to serve
a large privately-owned residential complex. Subsequently
the developer-owner entered into an Operating Agreement with
the Washington Suburban Sanitary Commission under which the
Commission undertook to operate the plant and the developer
to pay the full cost of operation. Still later, in
exchange for ten dollars, the developer transferred it to
the Commission by means of a deed entitled "Fee Simple
Determinable" for so long as the plant was used as a temporary
on-site sewage treatment facility upon termination of which
title is to revert to the grantor.
I do not believe that it is necessary to resolve the
precise legal status of ownership of the treatment facility
for purposes of this decision. If the facility is publicly-
owned the analysis set forth above would govern. If it were
privately-owned, the pertinent provision would be 402(a)(l)
which provides that prior to taking all necessary implementing
actions (in this case, promulgation of effluent limitations
guidelines for privately-owned treatment facilities) the
Administrator may impose conditions necessary to carry out
the provisions of the Act. The scope of the authority under
these provisions is identical. Moreover, the nature and
circumstances of the conveyance of a property interest in
the facility would not appear to render the considerations
addressed in the memorandum of March 28, 1974 of any less
force in this case.
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extend his authority beyond that granted by preceding provisions
of that section which relate to compliance with specified
sections of the Act. I do not believe it necessary to address
the effect of the quoted portion of section 402(a)(2) since I
have concluded that other elements of that section confer
sufficient authority to impose conditions of the type in
question.
Finally, Greenbriar Associates argue that the condition is
an unnecessary waste of valuable manpower. This question, as well
as other questions regarding the necessity and appropriateness of
the condition, are factual matters which are properly determined
at an adjudicatory hearing.
ISSUE OF LAW NO. II
Question Presented
"Whether general condition #18 was inserted into the subject
permit in violation of the applicable [NPDES] regulations regarding
notice and of the due process clause of the Fifth Amendment [to the
United States Constitution]?"
252
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Conclusion
Questions as to the constitutionality of Agency regulations
or procedures are not properly referred under 40 CFR §125.36(m).
They may appropriately be presented to the Courts of Appeal on
review of the final Agency action in connection with the permit.
The Agency's regulations authorize the Regional Administrator
to amend permit conditions contained in a proposed permit at any
time provided that all persons are afforded an opportunity for
a hearing on the revised permit conditions.
Discussion
40 CFR section 125.36(e)(8)(v) provides "the proposed
permit may be amended by the Regional Administrator prior to
or after the adjudicatory hearing and any person interested
in the particular proposed permit must request to be a party
in order to preserve any right to appeal the final administrative
determination." Amendment of the proposed permit would entitle
affected persons to a right to be heard on material issues of
fact related to the amendment. Such a hearing may be provided
by an adjudicatory hearing held pursuant to 40 CFR §125.36.
The permittee and members of the public who submitted comments
on the proposed permit will receive actual notice of the change.
253
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8
40 CFR §125.35(b)(1). Once an adjudicatory hearing is granted,
notice of the hearing will be provided pursuant to 40 CFR
§125.36(c)(4), and the contested provisions of the permit,
including any amended provisions, are stayed pending final
agency action in the adjudicatory hearing proceeding.
40 CFR §125.35(c).
Accordingly, I conclude that the Regional Administrator is
not required to provide for notice and a second opportunity for
a public hearing before changing the terms of a proposed permit,
since an adjudicatory hearing is available to contest the
provisions of the permit when issued.
Robert V. Zener
General Counsel
Dated:
Jl)N 2 7 1975
254
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 C.F.R. §125.36(m)
No. 20
In the matter of National Pollutant Discharge Elimination
System Permits for Marathon Oil Company, Atlantic Richfield
Company, and Shell Oil Company, (X-74-18C), the Presiding
Officer has certified eight issues of law to the Assistant
Administrator for Enforcement and General Counsel for decision
pursuant to 40 CFR §125.36(m) (39 F.R. 27078, July 24, 1974.)
The parties, having had the opportunity to provide written
briefs in support of their respective positions, present the
following issues:
ISSUES OF LAW NUMBERS I THROUGH VII
Conclusion
These questions are identical to those raised by Marathon
Oil Company and Atlantic Richfield Company in an earlier permit
proceeding. The decisions rendered on those seven questions
control the resolution of these seven questions and need not
255
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have been certified by the Presiding Officer. (See Decision
of the General Counsel on Matters of Law, No. 5,
April 4, 1975).
ISSUE OF LAW NUMBER VIII
Question Presented
"Must the findings of fact be based on substantial
evidence?"
Conclusion
The question of the standard of review of administrative
actions involves neither an interpretation of the Federal
+
Water Pollution Control Act, as amended, nor rules and
regulations promulgated thereunder and is therefore
improperly certified. The question does involve an
interpretation of the Administrative Procedure "Act
dealing with the judicial standard of review for
administrative actions. Thus, the question is more properly
addressed in the Circuit Courts of Appeals.
Dated:
Robert V. Zener ;
General Counsel
JUN27 1975
256
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
DECISION OF THE GENERAL COUNSEL
ON MATTERS OF LAW PURSUANT
TO 40 C.F.R. §125.36(m)
No. 21
In the matter of National Pollutant Discharge Elimination System
Permits numbered ID-002135-1, Riverside Irrigation District, Ltd.;
ID-002209-0, Nampa & Meridian Irrigation District; ID-002173-3, Boise
Project Board of Control; ID-002194-6, Drainage District No. 2; ID-
002159-8, South Board of Control; ID-002168-7, Farmers Cooperative
Irrigation Company, Ltd.; ID-002167-9, Farmers Union Ditch Company, Ltd.;
ID-002169-5, Black Canyon Irrigation District; ID-002209-8, A & B
Irrigation District; ID-002193-8, Aberdeen-Springfield Canal Company;
ID-002143-1, Twin Falls Canal Company; ID-002148-2, American Falls
Reservoir District No. 2, and Big Wood Canal Company; ID-002166-1,
Minidoka Irrigation District; ID-002112-2, Idaho Irrigation District;
ID-002213-6, Farmers Friend Irrigation Company, Ltd.; ID-002172-5,
New Sweden Irrigation District; ID-002170-9. Pioneer Irrigation
District, the Regional Administrator has certified seventeen issues
of law to the General Counsel for decision pursuant to 40 C.F.R.
§125.36(m) (39 F.R. 27078, July 24, 1974). The questions referred are
attached as Appendix A to this Decision. They have been consolidated
into four major issues for purposes of clarity. The parties, having
had an opportunity to provide written briefs in support of their respect-
ive positions, present issues falling into four general categories of
questions:
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2
ISSUE OF LAW NO. 1
Question Presented
Do the proposed permits meet constitutional standards providing
for due process and equal protection of the law and for the protection
against self-incrimination?
Conclusion
This question incorporates referred questions of law numbers 3,
9, 10 and 16. The referral of issues of law to the General Counsel,
provided for in 40 C.F.R. Part 125, is to insure that provisions of
the Federal Water Pollution Control Act and implementing regulations
issued thereunder are applied uniformly in the permit issuance pro-
ceedings conducted in the several Regional offices. The intent of 40
C.F.R. 125.36(m) is to enable questions concerning the interpretation
of the Act and pertinent regulations, as well as the consistency of the
Agency's regulations with the statutory requirements, to be resolved in
this office. The issues of law presented herein, on the other hand, in-
volve questions of Federal constitutional law rather than interpretations
of the Federal Water Pollution Control Act. As such, these issues are
more appropriately presented to a United States Court of Appeals on
appeal from final Agency action on the permits.
ISSUE OF LAW NO. 2
Question Presented
Is irrigation return flow a properly permittable source within
the meaning of sections 301 and 402 of the Act?
Conclusion
This question incorporates referred questions of law numbers 1,
4, 6 and 14, concerning whether these irrigation activities result in
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3
identifiable discharges of pollutants from a point source that is subject
to the prohibition of section 301 of the Act. It is my opinion, based on
the plain language of the Act and its legislative history, that the sub-
ject activities may result in point source discharges that were intended
by the Congress to be covered by the NPDES program.
Section 502(6) of the Act defines the term "pollutant" as
dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radio-
active materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and indust-
rial, municipal and agricultural waste dis-
charged into water. (Emphasis added.)
In section 502(14), the term "point source" is defined as
any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal
feeding operation, or vessel or other floating
craft from which pollutants are or may be dis-
charged.
And section 502(12) defines the terms "discharge of a pollutant" and
"discharge of pollutants," in pertinent part, as "any addition of any
pollutant to navigable waters from any point source."
Section 301 of the Act incorporates the above definitions, prohibiting,
except as in compliance with several substantive and procedural provisions
of the Act (including the section 402 permit provision), the "discharge of
any pollutant by any person." If the irrigation activity results in pollut-
ants being discharged from a discernible, confined and discrete conveyance
(such as a ditch) to waters of the United States, then it must be permitted
under section 402 of the Act or be in violation of the proscription of
section 301.
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4
The definition of "pollutant" specifically includes "agricultural
waste." That this term was intended to include material present in
irrigation return flow is clear from the legislative history of the Act.
In hearings on agricultural pollution held before the Senate Public Works
Committee, there was discussion of pollution problems resulting from
sediment, salinity, and agricultural chemicals and pesticides that reach
the Nation's waters as a result of farming activities.!/ In supplemental
views added by Senator Dole of Kansas to the Senate Report on the bill
(S. 2770) which became the FWPCA,_2/ the Senator discussed agricultural
pollution as concerning, for example, sedimentation, fertilizers, and
pesticides, fungicides and herbicides, noting that "management and control
of these factors are essential to the maintenance of environmental quality
while providing food and fiber products in abundant quantity.'\3/
On the House side, the existence of pollution in irrigation waters in
particular was pointed out by Representative Waldie in his discussion of
an amendment offered by Representative Roncalio which would have removed
irrigation return flow from coverage of the permit program.4_/ It is
clear from these and other discussions.^/ that the wastes in water used
for irrigation are "pollutants" within the meaning of section 502 of the Act.
I/ Hearings before the Subcommittee on Air and Water Pollution of the
~~ Committee on Public Works, United States Senate, Ser. No. 92 Hll, 92nd
Cong., 1st Session, Part 6, Agricultural Runoff, April 2, 1971, at
2518, 2524-5, 2575-8, 2686-98.
2/ "A Legislative History of the Water Pollution Control Act Amendments of
~~ 1972," Serial No. 93-1, Senate Committee on Public Works, 1513-17 (1973)
(Hereinafter "Legislative History.")
3/ Id., at 1513.
47 Legislative History at 652-3.
5/ See, for example, Legislative History at 220.
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The House debate on and rejection of the Roncalio amendment also makes
it abundantly clear that discharges of irrigation water are point source
discharges required to be permitted under section 402. In attaching a
statement to the Report on the House Bill (H.R. 11896) concerning the
failure of that bill to exempt irrigated agriculture from its require-
ments, Representative Roncalio noted the possible technical and adminis-
trative difficulties attendant on the regulation of this activity.^/ He
later sought, on the House floor, to amend the definition of "pollutant"
to exclude irrigation water. The debate on the amendment, engaged in
largely by Representatives Roncalio and Waldie, focussed specifically
on the characterization of the irrigation drain (as opposed to discharges
from individual farms) as a point source required to be permitted.
Representative Waldie, in particular, expressed his concern that under
the proposed amendment hundreds of thousands of farmers would be discharg-
ing into a pipe that would in turn discharge into the waterway, without
this source of pollution being subject to controls of a permit. He
characterized this as a "dangerous" possibility and urged rejection of
the amendment. It is my opinion that the subsequent rejection by the
House of the Roncalio amendment makes it clear that the Congress intended
the Administrator to treat these sources as point sources and to issue
them permits pursuant to section 402.
This construction is also, of course, supported by the plain language
of section 502(14), which defines a "point source" as a "discernible,
confined and discrete conveyance," including a pipe or ditch. Elsewhere,
in the consideration of the Senate bill, Senator Muskie, addressing the
question of agricultural "point" and "nonpoint" sources, indicated that
Legislative History at 860-861.
261
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6
if a man-made drainage ditch, flushing system or other such device is
involved and if measurable waste results and is discharged into water,
it is considered a 'point source. '"_7_/
The subject activity therefore is clearly subject to the permit
requirements where the finder of fact determines that it meets the Act's
requirements concerning the existence of pollutants in water that is
discharged from a "discernible, confined and discrete conveyance" such as
a pipe or a ditch. It is further my opinion that authority exists under
section 402 of the Act to regulate this activity as a discharge into navi-
gable waters.8/ Section 502(7) of the Act defines "navigable waters" as
"the waters of the United States, including the territorial seas." It is
clear that the intent of Congress in adopting this definition of "navigable
waters" was to broaden the concept of navigable waters to "portions thereof,
tributaries thereof . . . and the territorial seas and the Great Lakes."
[Emphasis added.] United States v. Holland, 373 F. Supp. 665, 671 (M.D.
Fla. 1974). The conference report accompanying the agreed upon bill reflects
the Congressional intention that the term be broadly interpreted, noting
that "the conferees fully intend that the term 'navigable waters' be given
the broadest possible constitutional interpretation."^/ Recent court
decisions also indicate that traditional concepts of navigability have
been abolished as a controlling factor in determining whether a body of
water constitutes "waters of the United States" and that Congress intended
7/ Legislative History at 1298-9. See also Supplemental views of Senator
Bob Dole, Legislative History at 1513-14.
8/ Note that section 301 prohibits the "discharge of any pollutant";
~~ section 502(12) defines "discharge of a pollutant" as "any addition
of any pollutant to navigable waters from any point source."
9/ Legislative History at 778. See also Legislative History at 250,327.
262
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7
to assert jurisdiction under the Act over all waters to which its power
extends under the commerce clause of the Constitution. See, e.g., U.S. v.
Ashland Oil and Transportation Co., 504 F 2d 1317, (C. A. 6 1974). U.S. v.
Phelps/Dodge, F. Supp. (D. Ariz.), 7 ERC 1823, April 8, 1975; NKDC
v. Callaway, F. Supp. (D.D.C.), 7 ERC 1784, March 27, 1975; PFZ
Properties v. Train, F. Supp. (D.D.C.), 7 ERC 1930, April 30, 1975.
The Agency has promulgated regulations (at 40 C.F.R. §125.1 (p))
implementing the statutory definition of navigable waters. As defined,
the term includes:
(1) All navigable waters of the United States;
(2) tributaries of navigable waters of the
United States; (3) interstate waters; (4) intra-
state lakes, rivers, and streams which are uti-
lized by interstate travelers for recreation
or other purposes; (5) intrastate lakes, rivers,
and streams from which fish or shell fish are
taken and sold in interstate commerce; and (6)
intrastate lakes, rivers, and streams which are
utilized for industrial purposes by industries
in interstate commerce.
It thus appears that the waters that are the subject of these permits
may well be determined by the finder of fact, applying the statutory
and regulatory test to the facts of these cases, to be navigable waters
within the definition in the Act.
Requestors have argued that irrigation return flow canals cannot
constitute both navigable waters and point sources and that the breadth
of the definition of navigable waters precludes the issuance of an NPDES
permit to the irrigation district. The clear tenor of the legislative
history, however, is that the broad definition of "navigable waters"
serves to expand the application of the Act and the permit program, not
263
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8
narrow it, as several of the Requestors suggest. Moreover, to define
the waters here at issue as navigable waters and use that as a basis
for exempting them from the permit requirement appears to fly directly
in the face of clear legislative intent to the contrary.10/ Further,
it should be noted that what is prohibited by section 301 is "any
addition of any pollutant to navigable waters from any point source."
It is therefore my opinion that, even should the finder of fact deter-
mine that any given irrigation ditch is a navigable water, it would
still be permittable as a point source where it discharges into another
navigable water body, provided that the other point source criteria are
also present.
Neither the provisions of section 208 or 305 in any way impact on
the applicability of the section 402 program. Both of these provisions
were intended to be complementary to the point source permit program
and to guide the Congress and the Administrator, working with States, in
developing long-range pollution control and resource management programs.ll/
It would be completely contrary to the purposes of the Act to construe
either of these sections so as to impede the implementation of provisions
that were clearly to be carried out vigorously and expeditiously.12/
With regard to section 208 planning requirements, it is clear on its
face that this section is to provide a mechanism for developing information
and regulatory programs for dealing with some of the more complex and per-
plexing water pollution problems resulting from nonpoint sources, including
10/ See discussion supra at 4-5.
ll/ See, for example, the explanation of Senator Boggs on the Senate floor,
that information from the section 305 study "should enable Congress,
within a few years, to pinpoint with greater accuracy the date and cost
for achieving a no-discharge goal, together with the enforcement
mechanism necessary to achieve it." Legislative History at 1266.
Y2J See, Legislative History at 812, 1460, 1482, 1490.
264
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9
those associated with agricultural activities. It is also clear,
however, from both the plain language of the Act and its legisla-
tive history discussed supra, at 4-6, that Congress recognized
that some agriculture activities result in point source discharges
which should be subject to sections 301 and 402 of the Act. There
is nothing in either the Act or its legislative history to indicate
that regulation of these sources was to await completion of section
208 planning efforts. In fact, the deadlines and schedules set out
in the Act itself support a contrary inference.13/
Similarly, section 305 of the Act provides for a water quality
inventory and identification of point sources of discharge into navigable
waters. It provides for a report to be submitted to Congress for its use
in reviewing long range pollution control goals.IA_I There is no indication
at all that the prohibition of section 301 was intended to be limited
only to those sources identified and inventoried pursuant to section 305.
It is therefore my opinion that where the finder of fact determines that
the subject source meets the criteria established in the Act and implement-
ing regulations for definition of a point source, the source is permittable
under sections 301 and 402 without regard to the existence or non-existence
of a section 305 point source inventory.
13/ Sections 208(a) and (b) establish a schedule that would result in
completed planning efforts probably no earlier than mid-1976.
Section 402(k) contemplated permit issuance by the end of 1974.
14/ See discussion supra, at 8.
265
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10
ISSUE OF LAW NO. 3
Question Presented
Is there authority under the Federal Water Pollution Control Act to
issue an NPDES permit to irrigation and drainage districts such as Requestors?
Conclusion
This question incorporates referred questions of law numbers 2, 5, 15
and 17. Section 301 of the Act provides that, except as in compliance
with specified sections of the Act (including section 402), "the discharge
of any pollutant by any person shall be unlawful." Emphasis added. We
have already discussed, supra, under Issue of Law No. 2, the authority of
the Agency to determine that irrigation activities result in the "discharge
of any pollutant" which is prohibited by section 301. Section 502(5) of
the Act defines the term "person" as an "individual, corporation, partner-
ship, association, State, municipality, commission, or political subdivision
of a State, or any interstate body." In the Report accompanying the Senate
bill, this already broad definition is further clarified as meaning "all
entities which are capable of suing or being sued.'VLS/ Idaho Code 43-2901 and
43-307 specifically provide that irrigation districts have the legal status
to sue and be sued. The Requestors, therefore, would appear to be "persons"
within the meaning of the Act.
The permit program for irrigation return flow discharges is implemented
in regulations at 40 C.F.R. §124.11, which provide for issuance of permits
controlling
15/ Legislative History at 1494.
266
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11
Discharges of irrigation return flow (such as
tailwater, tile drainage, surfaced groundwater
flow or bypass water), operated by public or
private organizations or individuals, if: (i)
There is a point source of discharge (e.g., a
pipe, ditch, or other defined or discrete con-
veyance, whether natural or artificial and;
(ii) the return flow is from land areas of more
than 3,000 contiguous acres, or 3,000 non-con-
tiguous acres which use the same drainage
system ...
The regulation thus implements the requirement that there be an
identified point source of discharge by a "person" (i.e., a "public or
private organization or individuals"), providing further that permits will
be required only for discharges that originate from land areas of more
than 3,000 contiguous acres or 3,000 noncontiguous acres which use the
same drainage system.JL6/ The preamble to the final promulgation estab-
lishing section 125.11 adds clarification to the permit requirements for
irrigation return flow, indicating that "it is the individual or organiza-
tion who actually has control of or responsibility for the discharge of
irrigation return flow that must apply for the permit." (38 F.R. 18001,
July 5, 1973.) Emphasis added.
It is therefore my opinion that if the finder of fact determines that
Requestors are persons within the meaning of the Act, who are responsible
for discharges from point sources of return flow emanating from a land area
of 3,000 acres or more drained by the same system, then issuance of permits
to Requestors is consistent with the authority and responsibility imposed
on the Administrator by the Act.
16/ The latter proviso has been the subject of litigation in the District
Court for the District of Columbia, Natural Resources Defense Council,
Inc. v. Train (Civ. Action No. 73-1629). In a memorandum opinion
dated March 24, 1975, the Court found that the exclusion of any point
(cont.)
267
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12
Requestors also have raised several issues in which they assert that
claimed deficiencies in State law and their own enabling authority con-
stitute impediments to the issuance of NPDES permits since they are said
to preclude their ability to comply with such permits. As was indicated
in the discussion of Issue No. 1, supra, at 2, the referral of issues
to this office is to enable questions concerning the interpretation of
provisions of the Act and pertinent regulations to be resolved by the
General Counsel and to ensure their uniform application in permit issuance
proceedings. It is not considered the prerogative of this office to
interpret either State law, or as is discussed supra, Federal Constitu-
tional law.
I have expressed my opinion that the Federal Water Pollution Control
Act establishes authority and responsibility in the Administrator to
issue NPDES permits controlling discharges of irrigation return flow and
that the legislative history supports a determination to issue permits
to the parties to this proceeding. While I would note that in the case
*
of conflict between State and Federal law the generally held principle
is that State law cannot impede or obstruct the implementation of Federal
law,_T7_/ it is my view that the question of supremacy of the Federal
16/ (cont.) sources (such as irrigation return flow from land areas of less
than 3,000 acres) from the obligation to secure a permit under section
402 is contrary to the requirements of the Act. It should be noted here
that neither of the primary parties argued, nor did the court adopt, a
reading of the Act that would exclude all agricultural sources as non-
point sources. The court's final judgment, entered on June 10, 1975,
requires that EPA promulgate regulations extending the NPDES permit
system to all point sources in the agriculture and silviculture cate-
gories. However, the court also provided that until the Agency has
promulgated such regulations, the current provisions of 40 C.F.R. Parts
124 and 125 excluding certain sources in these categories shall remain
in full force and effect. It is my view that the regulation at issue
continues as the controlling guidance pending final promulgation of the
required amendments to 40 C.F.R. Parts 124 and 125.
17/ Article 6, Clause 2 of the United States Constitution provides that
"this Constitution, and the Laws of the United States which shall be
(cont.) 268
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13
statute is a matter of Federal constitutional law that is more appropriately
presented to a United States Court of Appeals on appeal from final Agency
action on the permits.
ISSUE OF LAW NO. 4
Question Presented
May the Administrator include in the permit several specifically
defined permit conditions?
Conclusion
The conditions in question require various monitoring, information
collection and evaluation and treatment requirements. It is my opinion
that the Agency has statutory authority to impose conditions of this
nature in NPDES permits. The reasonableness of the, particular conditions
established in the permits involved, however, is a factual matter which
must be determined on the basis of the record of an adjudicatory hearing.
17/ (cont.) made in Pursuance thereof; ... shall be the supreme Law of
the Land; ... ." In Davidowitz v. Hines,312 U.S. 52 (1941), the
Supreme Court affirmed a lower court injunction against enforcement
of a Pennsylvania statute concerning alien registration and identi-
fication cards. Ruling that "when the national government by treaty
or statute has established rules and regulations touching the rights,
privileges or burdens of aliens as such, the treaty or statute is
the supreme law of the land. No state can add to or take from the
force and effect of such treaty or statute, ... ." 312 U.S. at 66-7.
Noting the variety of approaches to the application of the Supremacy
doctrine, the Court indicated that "in the final analysis, there can
be no one crystal clear distinctly marked formula. Our primary
function is to determine whether, under the circumstances of this
particular case, Pennsylvania's law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress." 312 U.S. at 67- (Citations omitted. Emphasis added.)
The Court has, since the Hines case, applied the principle
set out above ;o cases involving a variety of State/Federal law
concepts. See, e.g., U.S. v. Ga. Public Service Commission, 371 U.S.
285, 292-3 (1963), Sperry v. Florida, 373 U.S. 379, 384-5 (1963),
Maryland v. Wirtz, 392 U.S. 183, 195-6 (1968), Perez v. Campbell,
402 U.S. 637, 649-56 (1971). (cont.)
269
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14
The Act vests in the Administrator a broad and comprehensive authority
to establish permit conditions necessary to carry out its principal regula-
tory provisions.18/
Section 402(a)(1) authorizes the Administrator to issue permits upon
condition that applicable requirements of other enumerated sections are
met. It also provides that "prior to the taking of all necessary implement-
ing actions relating to such requirements" (in this case the promulgation of
effluent limitations guidelines governing irrigated agriculture) , the
Administrator may issue permits with "such conditions as [he] determines
are necessary to carry out the provisions of the Act."
In addition, section 402(a)(2) requires that the Administrator pres-
cribe such conditions to assure compliance with the requirements of 402
(a)(1) - which includes the. requirements of sections 301 and 308 of the Act.
These conditions include those relating to data and information collection,
reporting, and "such other requirements as he deems appropriate." 40 C.F.R.
§125.22(b) provides that permits are to include "such special conditions as
are necessary to ensure compliance with applicable effluent limitations."
17/ (cont.) The Court has also held that "when a federal statute condemns
an act as unlawful, the extent and nature of the condemnation, though
left by the statute to judicial determinations, are nevertheless federal
questions, the answers to which are to be derived from the statute and
the federal policy which it has adopted. To the federal statute and
policy, conflicting state law and policy must yield. Sola Electric Co.
v. Jefferson Elec. Co.. 317 U.S. 173, 176 (1942). (Emphasis added.)
See also, Deitrick v. Greaney, 309 U.S. 190, 200-1 (1940).
Given the relatively recent emergence of environmentally protective
statutes such as the FWPCA which impose affirmative burdens on States
and state-chartered entities, there appears to be no Supreme Court
ruling specifically applying the supremacy doctrine to such situations.
It is my view, however, that the principles consistently enunciated by
the Court are entirely apposite where, as here, a Federal statute has
made an Act unlawful and state law is presented as an obstacle to full
implementation and enforcement of the Federal law.
18/ See, Legislative History at 178.
270
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15
In my opinion, these provisions of the statute and implementing
regulations authorize permit terms requiring treatment of pollutants
in irrigation return flow which reflect the peculiar characteristics
of pollutants associated with irrigation operations. It is also my
opinion that conditions relating to collection of data and informa-
tion, and monitoring of flows and pollutant loadings, are authorized
if they may reasonably be found to be "necessary to carry out the
provisions of the Act." As indicated above, the propriety of the
particular conditions at issue is a factual, not a legal, matter.
Robert V. Zene
General Counsel
Date:
JUN 2 7 1975
271
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Attachment A
1. Do the areawide planning provisions of FWPCA § 208 [33 USCA §
1218] conflict with and/or preclude issuance of the instant NPDES pemits
to irrigation districts and canal companies?
(See X-74-30, Supplement, page 1, paragraph 1 (A))
2. If each user-consumer of the water supplied by an irrigation
district or canal company, owns or controls less than 3000 acres to be
serviced by such water, is all the acreage so supplied by the irrigation
district or canal company thereby exempted from NPDES permit requirements
by 40 CFR § 125.4? Conversely, is the total acreage serviced by water
supplied by an irrigation district or canal company the figure to be
aggregated and used in determining exclusion or inclusion under 40 CFR
§ 125.4(j)(4)?
(See X-74-32, Supplement, page 1, paragraph 1 (B)(I)).
3. Were the instant permittees denied due process of law or equal
protection of the law by the fact that dischargers with return flows
from land amounting to less than 3000 acres are excused under 40 CFR §
125.4 from obtaining NPDES permits?
(See X-74-32, Supplement, page 1, paragraph 1 (C)).
4. May these NPDES permits be issued prior to the completion of
the study or actions specified in FWRCA § 305(a)(2) [33 USCA § 1315(a)(2)]
(See X-74-30, Supplement, page 2, paragraph 1 (D)).
5. If an irrigation district or canal company does not own or
control the land supplied by its canals, and -if the canal water is
simply extracted by users and thereafter discharged by them as runoff
into waters of the United States from point sources on the users'
1ands, has the irrigation district or canal company nevertheless
participated sufficiently in the water supply-use-di.scharge process so
as to be held jointly and severally responsible with each such user to
obtain an NPDES permit covering each user's point source discharges?
Under such circumstances is an irrigation district or canal company
engaged in the "discharge of any pollutant" within the meaning of FWPCA
§ 402(a) [33 USCA § 1342(a)j?
(See X-74-30, Supplement, page 2, paragraph 1 (j) and page 4,
Paragraph 2 (A)) .
Exhibit A
272
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6. Is the wrist own ter which results from diversion of n.itural v.ilrr
ontci fields for irrigation and subsequent return discharge into waters
of the United States, a "pollutant" under FWPCA § 502(6) [33 USCA §
1362(6)1, and does that process constitute the discharge of pollutants
under any provision of FWPCA, as amended.
(See X-74-22, Supplement, page 2, paragraph 5 (C)).
7. May the permit terms (e.g. Special Condition I) properly require
permittees to evaluate the supply water patterns and return flow patterns
and to propose monitoring locations representative of the quality of
water before and after its use for irrigation purposes?
(See X-74-30, Supplement, page 2, paragraph l.(G)).
8. May the permit terms (e.g. Special Condition 4) properly
require.a permittee to expend funds and perform the task of inventorying
"...all significant non-irrigation sources... or other discharges of
pollutants...that materially affect the quality of the irrigation water.."
in the irrigation return flow canals.
(See X-74-30, Supplement, page 2, paragraph 1 (G) and FWPCA § 305(a)
(2) [33 USCA § 1315(a)(2)].
9. Are t lie words "significant" and "materially" in Special Condition
A of the permits unconstitutionally imprecise, vague or indefinite in
vic'W of the civil and criminal penalties which can result from permit
violations?
(See X-74-30, Supplement, page 3, paragraph 1 (J), (K), and (L)).
10. Are the phrases "...problems in need of correction..." and
"...or other acquatic life..." in permit special conditions 5 and 6
unconstitutionally imprecise, vague or indefinite in view of the civil
and criminal penalties which can result from permit violations?
(Sec X-74-30, Supplement, page 3, paragraph 1 (M)).
1.1. Under FWPCA § 402(a) [33 USCA 5 lA12(a)] may the Administrator
properly require (Special Condition 6) the permittees to render non-
toxic (prior to discharge into waters of the United States) all Irrigation
return flow water to which acquatic weed control chemicals have been
.added?
(See X-74-30, Supplement, page 3, paragraph 1 (M)).
273
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12. Is Special Condition 7 of the permits (requiring removal of
moss and debris from canals and ditches) arbitrary, capricious and
unreasonable, assuming that such moss and debris become present in a
canal by the acts of third persons who are not agents or employees of
the permittee irrigation district or canal company?
(See X-74-30, Supplement, page 3, paragraph 1 (0)).
13. Under FWPCA § 402(a) [33 L1SCA § 1342(a)] may the Administrator
properly require a permittee to perform the studies, provide the information,
and make the determinations set forth in Special Condition 3 of the
permit?
(See X-74-30, Supplement, page 5, paragraph 4 (B)).
]4. May the Administrator properly require an irrigation district
or canal company to obtain aii NPDES permit to cover its discharge when
such discharge1 Js only into the canal system of another irrigation
district or canal company which in turn controls ultimate discharges
into waters of the United States?
(Sec X-74-28, Amendment and Supplement, page 6, paragraph 4 (F))).
15. If an irrigation district (such as Minidoka X-74-32) is merely
engaged in the collection of irrigation runoff or return water, and the
transporting of that wastewator for discharge to waters of the united
States (so that it may constitute a "drainage district" under Idah-i
State law) does such status under State law exempt it from applying for
and obtaining an NPDES permit?
(See X-74-32, Amendment and Supplement, "page 4 and 5, paragraph 2
(F))-
.16. Is General Condition 1.5 of the permits (requiring the reporting
of any additional monitoring done by the permittee) unconstitutional, as
being violative of the sclf-incrimination or other provisions of the
Fifth Amendment to the Constitution of the United States?
(See X-74-22, Supplement, page 9, paragraph (i)).
17. Do the instant .permits impose duties upon Idaho irrigation
districts which the directors 'of such districts presently do not have
the authority under Idaho State law to perform? If so, may the instant
permits nevertheless properly impose such duties on such districts?
(See X-74-37, Supplement, page 2, paragraph 2).
274
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, B.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 C.F.R. §125.36(m)
No. 22
In the matter of National Pollutant Discharge Elimination System
permit for United States Steel Corporation, South Works (permit
No. IL-0002691), State of Illinois, the Presiding Officer has certified
six issues of law to the Assistant Administrator for Enforcement and
General Counsel for decision pursuant to 40 C.F.R. §125.36(m)
(39 F.R. 27078, July 24, 1974). The parties having had the opportunity
to provide written briefs in support of their respective positions,
present the following issues:
ISSUE OF LAW NO. I
Question Presented
"Whether the effluent limitations, monitoring requirements,
and compliance schedule contained in the NPDES permit for United
States Steel Corporation's South Works must, as a matter of law,
be no less stringent than those contained in the 'Order and
Stipulation' entered into in consolidated cases People of the
275
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2
State of Illinois, ex rel. William J. Scott, Attorney General of
Illinois, Plaintiff, vs. United States Steel Corporation,
No. 69 CH 3334, and The Metropolitan Sanitary District of Greater
Chicago, Plaintiff, vs. United States Steel Corporation,
No. 67 CH 5772, in the Circuit Court of Cook County, Illinois,
County Department, Chancery Division on January 18, 1970?"*
Conclusion
The effluent standards, monitoring requirements and
compliance schedule now contained in the subject permit, which
have been abstracted from the "Order and Stipulation," need not be
conditions of the permit unless such conditions are necessary to
implement section 301(b)(l)(C) of the Federal Water Pollution Control
Act, as amended (the Act) or unless the State has issued a certi-
fication, pursuant to section 401 of the Act, containing a require-
ment that provisions of the "Order and Stipulation" constitute
conditions on the permit.
Discussion
Section 402(b)(l)(A) of the Act requires that NPDES permits
"apply, and insure compliance with, any applicable requirements of
section[sj 301. . ." Section 301(b)(l)(C) provides that there shall
* A copy of the Order and Stipulation are attached as Appendix A
to this Decision.
276
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be achieved "not later than July 1, 1977, any more stringent limitations,
including those necessary to meet water quality standards, treatment
standards, or schedules of compliance, established pursuant to any
State law or regulations (under authority preserved by section 510) or
any other Federal law or regulation, or required to implement any
water quality standard established pursuant to this Act." The "Order
and Stipulation" is quite obviously not itself either a water quality
standard established pursuant to the Act or a limitation established
pursuant to other Federal laws or regulations. Nor does it purport
to be a generally applicable statutory or regulatory requirement
promulgated by the State of Illinois pursuant to authority preserved
by section 510 of the Act. Rather it constitutes an agreement
entered into among the State, the permittee and a local public agency*
in order to resolve litigation then pending in a State court in a
manner acceptable to all parties. While some of the restrictions
on discharges from permittee's plant which are contained in the
"Order and Stipulation" may constitute limitations derived from
generally applicable State laws, it is impossible to determine which,
if any, in fact are based directly on specific requirements of such
State laws or regulations rather than on some collateral consideration.
* EPA was not a party to the Stipulation. Hence, this case is
distinguishable from the situation addressed in the Decision
of the Assistant Administrator for Enforcement and General
Counsel No. 2 (December 30, 1974) which involved a consent
decree to which the Agency was a party.
277
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The permittee contends in its brief that the recycle system required
by the "Order and Stipulation" is not predicated on a State statute
or regulation and it is not implausible that a negotiated settlement
would include provisions not directly related to statutory requirements.
Unless a showing is made that this was not the case, the "Order and
Stipulation" may represent merely a compromise between the parties
rather than a declaration of their rights and obligations under state
law. See United States v. International Building Company, 345 US 502,
73 S.Ct. 807 (1953).
It should be noted that paragraph 8 of the "Stipulation and Order"
provides "Nothing contained in this stipulation... shall be deemed
in any way whatsoever a waiver by defendant of its legal positions
taken in this proceeding, including but not limited to its denial of
both plaintiffs' right and authority to maintain this action..."
Thus, the parties have expressly negated any inference that the
permittee considered the terms of the "Order and Stipulation" as
a resolution of the merits of the case brought against it.
Moreover, while consent decrees and stipulated agreements may,
in some cases, represent binding declarations of state law, only those
limitations which are more stringent than otherwise applicable federal
limitations are to be imposed pursuant to section 301(b)(1)(C) .
278
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Certain of the provisions of the "Order and Stipulation" appear
to be less stringent than those which would otherwise be imposed.
Paragraph 6 of the "Order and Stipulation", for example, contains
provisions for delays in the date by which the limitations are
to be achieved for a variety of contingencies - many of which would
be unacceptable under the federal standards. Each limitation in
a consent decree must be read in light of other provisions of the
decree or of state law in determining whether or not it is in
fact more stringent than the corresponding limitation which would
be required under federal law. Since each limitation in the
Order is subject to the potential for delays allowed by Paragraph
6, its presence raises a question as to whether the terms of the
"Order and Stipulation" are indeed more stringent overall than
those which would otherwise be required.
Accordingly, I conclude that the limitations of the "Order
and Stipulation" which are more stringent than the limitations
otherwise applicable to the permittee's discharge need not be
included in its NPDES permit pursuant to section 301(b)(l)(C)
of the Act solely by virture of their presence in that "Order
and Stipulation".
279
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There remains the question of whether the terms of the
"Order and Stipulation" which are more stringent attach to the
permit pursuant to section 401 of the Act.
If the terms of the "Order and Stipulation" have been
forwarded to this Agency pursuant to a certification under
section 401 of the Act, as conditions necessary to implement
section 301, then those more stringent provisions in the
certification contained in the "Order and Stipulation" would
attach to the permit by operation of law whether or not they
are physically included in the permit. (See Decision of the
General Counsel on Matters of Law, No. 17 June 16, 1975). However,
*
it does not appear that the Environmental Protection Agency
has received a certification from the State containing as such
requirements, provisions of the "Order and Stipulation."
Rather, EPA has determined that some of the conditions in the
"Order and Stipulation" are more stringent "limitations
established pursuant to State law" required by section 301
to be included within the permit, a conclusion I have held
to be incorrect.
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The Agency has an obligation to determine whether more stringent
State standards exist and, if so, to include them in the permit in lieu
of limitations which would apply under section 301(b)(l)(A) or 402(a)(l).
Evidence may be adduced at the hearing concerning EPA's and other parties'
interpretations of the requirements of State law or regulations and the
"Order and Stipulation" may be found to be relevant to that determination.
ISSUE OF LAW NO. II
Question Presented
"If the answer to Issue I is in the affirmative, must all the
terms and conditions of the "Order and Stipulation also, as a matter
of law, be incorporated in the permit?"
Conclusion
Having answered the inital question in the negative, this
issue need not be addressed.
ISSUE OF LAW NO. Ill
Question Presented
"Or in the alternative, if the answer to Issue I is in the
affirmative and the answer to Issue II is in the negative, must the
281
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8
Administrator, as a matter of law, consider all terms and conditions
of the "Order and Stipulation" in determining the terms and conditions
of the permit?"
Conclusion
Having answered the initial question in the negative, this
issue need not be addressed.
ISSUE OF LAW NO. IV
Question Presented
"Whether the effluent limitations, thermal limitations, and
monitoring requirements, of the Water Pollution Control Regulations
issued by the Illinois Pollution Control Board must, as a matter
of law, be incorporated as conditions of the NPDES permit, and if
such provisions must, as a matter of law, be incorporated as
conditions of the permit, must all other provisions of said regu-
lations and statutes (the Illinois Environmental Protection Act,
111. Rev. Stat. Ch. Ill 1/2, §1001, et seq.) on which they are
based also be incorporated as conditions of the permit and does
that preclude the introduction of evidence relating thereto?"
Conclusion
This question has previously been answered in the Decision
of the General Counsel on Matters of Law No. 17 (June 16, 1975) in a
proceeding involving the same permit applicant and therefore need not
be addressed here.
282
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ISSUE OF LAW NO. V
Question Presented
Paragraph 15 of USSC's Request for Adjudicatory Hearing
"...objects to the provisions of Part III on page 16 of the Permit
which includes a new requirement relating to possible dredging at
the request of or with the approval of the U.S. Army Corps of
Engineers."
A. It is USSC's position "...that Part III on page
16 of 18 (of the Permit) relating to the requirements of
the U.S. Army Corps of Engineers pertaining to navigation
should be deleted because there are adequate provisions of
the law for the protection of navigation and said provision
is overly vague and burdensome and would deprive the Company
of due process of law contrary to the provisions of the 5th
Amendment of the Constitution."
B. It is the EPA's position "...that it must, as a
matter of law, include in all permits those conditions that
the (Corps of Engineers) considers to be necessary to insure
that navigation and anchorage will not be impaired. EPA
states that the Part III requirement regarding dredging is
included in (permit) at the instance of the Corps of
Engineers."
283
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10
Conclusion
This question has previously been answered in the Decision
of the General Counsel on Matters of Law No. 17 (June 16, 1975) in a
proceeding involving the same permit applicant and therefore need
not be addressed here.
ISSUE OF LAW NO. VI*
Question Presented
"Whether as a matter of law and policy the terms and conditions
of that certain agreement entered into between the United States
Environmental Protection Agency by Alan G. Kirk II, Assistant
Administrator for Enforcement and General Counsel, and Charles Corkin II,
Counsel for Administrative Litigation, and USSC by Earl W. Mallick,
Vice President, on December 16, 1974 (the "Agreement"), together with
the attached form of permit are a binding obligation on the part of
the United States Environmental Protection Agency to issue all permits
to USSC in accordance with said form and subject to the attached
agreement?"**
* This issue was not included in the issues referred by the Presiding
Officer. However, it has been briefed by both the permittee and
by the intervenor, Business and Professional People for Public
Interest, and the Region has not objected to its resolution in this
proceeding.
** A copy of this Agreement is attached as Appendix B to this Decision,
284
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11
Conclusion
The Agency may only be bound to propose conditions for a permit
consistent with the terms of the Agreement and to adopt such conditions
in the issued permit unless it concludes, on the basis of the record
of the individual permit proceeding before it, that such provisions
are inconsistent with the requirements of the Act. The Agency must
consider issues raised by public comments on the proposed permit or
at an adjudicatory hearing on the issued permit concerning the
application of the Agreement to the specific permit.
Discussion
The principles enunciated in the Decision of the Assistant
Administrator for Enforcement and General Counsel on Matters of Law
No. 2 (December 30, 1974) control the resolution of this issue. The
Agency is not free to make absolute commitments or guarantees, in
agreements entered into in advance of NPDES permit proceedings,
that the terms of such agreements will be included in the permit as
ultimately issued, regardless of comments submitted by interested persons
or evidence adduced by parties to adjudicatory hearings. A contrary
conclusion would vitiate the Act's requirements for public participation
in the permit process. Sections 101(e), 402(a)(1), 402(b)(3).
The Agency will have met its legitimate obligations under the
agreement by proposing as acceptable limitations and conditions those
285
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12
set forth in the Agreement and by adopting those conditions in the
permit if, after having given serious consideration to public
comments received during the proceedings required by 40 CFR Part 125,
it concludes that such conditions are compatible with the requirements
of the Act.
n
'\ .
Dtd JUL3 1975
Dated:
Robert V. Zener//
General Counsel ^
286
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•.STAY..; or .ILLINOIS ) (
) SS
COUNTY or COOK ) O
IN THE CJrCUTTCOUP.T OF COOK COUNTY, ^LLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION
PEOPLE OF THE STATE OF ILLINOIS, )
cx.rcl. WILLIATi J. SCOTT, Attorney )
General of Illinois, )
)
Plaintiffs ) No. 69 CH 3334
)
vs. )
) CONSOLIDATED
UNITED STATES STEEL CORPORATION, )
a foreign corporation, )
)
Defendant )
)
METROPOLITAN SANITARY DISTRICT )
OF GREATER CHICAGO, a Municipal )
corporation, )
)
Plaintiff )
)
vs. }
)
UNITES STATES STEEL CORPORATION, ) Ko. 67 'CH 5772
a foreign corporation licensed to )
do business in the State of Illinois, )
)
Defendant )
UNITED STATES STEEL CORPORATION, )
a foreign corporation, licensed to do )
business in the State of Illinois, )
)
Def endant-Counterclaiir.ant )
)
vs. )
)
WILLIAM J. SCOTT, Attorney General )
of Illinois; THE METROPOLITAN SANI- )
TAUY DISTRICT OF GREATER CHICAGO, a )
Municipal Corporation; and FRANKLIN D. )
YODI:R, WILLIAM L. RUTHERFORD, JOHN w. )
LEWIS, WILLIAM F. CELLINI, A. L. SARGENT )
and C. S. BOUUFF, comprising the SANITARY )
WATER BOARD OF ILLINOIS, )
)
Counter - Defendants )
ORDER
EXHIBIT: A
287
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0 R D JE n
This matter coming on to be heard; the parties appearing by
their counsel; it appearing that the parties having duly entered
into a stipulation dated January 18, 1971 (Stipulation) which pro-
vides for disposition of this case, the original of said Stipulation
having been filed with the Court and a copy being attached hereto
and incorporated herein by reference; and the Court having considered
said Stipulation and the other documents heretofore filed herein
and finding it to be reasonable, having heard argument of counsel,
and being fully advised in the premises;
IT IS THEREFORE ORDERED:
1. That all pending proceedings relating to violations
of the temporary injunction heretofore entered in
cause number 67 CH 5772 are dismissed without costs
to any party.
I. That all other proceedings in these causes are stayed
until further order of Court entered in accordance
with the terms of this order and the Stipulation
between the parties.
3. That upon the completion of "Step III" as set
forth in the Stipulation, all other proceedings
in these actions shall be dismissed without costs
to any party, provided however, that the Court
shall thereafter retain jurisdiction of the
parties for the sole purpose of enforcing the
288
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rights and oW-options of the parties uiv'cr the
terms of Stipulation end this order.
DATED: January 10. 1971
ENTER:
JUDGE
WE AGREE TO THE FORM, SUBSTANCE AIs'D ENTRY OF THE ABOVE ORDER.
Attorney for Plaintiff-Counter-
Defendant, TKS METROPOLITAN
SANITARY DISTRICT OF GREATER
CHICAGO
V?ILLIAM J. SCOTT
Attorney for the Plaintiff-Countei
Defendant, People of the State of
Illinois
HACKBERT, ROOKS, PITTS,
FJLLAGAR AND POUST
Attorneys for Defendant-
Counterclainant,
UNITED STATES STEEL CORPORATION
By
-2-
289
-------
OF ILLINOIS )
COUNTY OF COOK
) ss
)
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION
PEOPLE OF THE STATE OF ILLINOIS,
ex. rel. WILLIAM J. SCOTT, Attorney
General of Illinois,
Plaintiffs
vs.
UNITED STATES STEEL CORPORATION,
a foreign corporation,
Defendant
METROPOLITAN SANITARY DISTRICT
OF GREATER CHICAGO, a Municipal
corporation.
Plaintiff
vs.
UNITED STATES STEEL CORPORATION,
a foreign corporation licensed to
do business in the State of Illinois,
Defendant
TJNITED STATES STEEL CORPORATION,
a foreign corporation licensed to do
business in the State of Illinois,
Defendant-Counterelaimant
vs.
WILLIAM J. SCOTT, Attorney General
of Illinois; THE METROPOLITAN SANITARY
DISTRICT OF GREATER CHICAGO, a Municipal
corporation; and FRANKLIN D. YODER,
WILLIAM L. RUTHERFORD, JOHN W. LEV/IS,
WILLIAM F_ CELLINI, A. L. SARGENT and
C. S. BORUFF, comprising the SANITARY
WATER BOARD OF ILL1XOIS
Counter-Defendants
No. 69 CH 3334
CONSOLIDATED
No. 69 CH 5772
F I tL O D
JAN "l 8 ',971
MATTHEW J. DANAHER. Clerk
STIPULATION
296.
-------
Plaintiffs, People of the Stotc of Illinois through Attorney
General William J. Scott and The Metropolitan Sanitary District of
Greater Chicago together with the Defendant, United States Steel
Corporation, agree that the following statements form the basis
for the mutual agreement between the parties which is embodied in
this document.
1. On October 26, 1967, The Metropolitan Sanitary District
of Greater Chicago, an Illinois municipal corporation (hereinafter
referred to as "District") commenced an action in the Circuit
Court of Cook County, Illinois, No. 67 CH 5772 against United
States Steel Corporation (hereinafter referred to as "Defendant")
which owns and operates a steel manufacturing plant (known as its
"South Chicago Works") within the City of Chicago, Illinois,
adjacent to Lake Michigan and the Calumet River. The District
sought an injunction under Illinois Revised Statutes, 1967. Ch. 42,
Section 326aa restraining Defendant from alleged pollution of the
waters of Lake Michigan and an injunction under 111inois Revised
Statutes, 1967, Ch. 42, Section 326, restraining the Defendant
from allegedly polluting the waters of the Calumet River.
2. On March 22, 1968, following a hearing held after the
District filed a supplemental petition, a temporary injunction was
entered in said cause restraining Defendant from discharging any
oil or oily substances into the waters of Lake Michigan, which oil
or oily substances would be visibly floating on the surface of
said waters, which injunction was thereafter affirmed by the Supreme
Court of Illinois upon interlocutory appeal.
29.1
-------
3. On or about; September 10, 1969, William J. Scott,
Attorney General of the State of Illinois (hereinafter referred
to as the "Attorney General"), commenced an action in the Circuit
Court of Cook County, No. 69 CII 3334, on behalf of the People of
the State of Illinois against Defendant, United States Steel
Corporation, seeking an injunction against alleged pollution
by South Chicago Works of Lake Michigan and other waters in Cook
County, Illinois. The Attorney General brought the action under
Public Lav/ 76-205, effective July 1, 1969.
4. On October 7, 1969, the Attorney General's suit and the
District's suit were consolidated for trial before this court.
5. On October 9, 1969, Defendant filed a motion to dismiss
the Attorney General's complaint. After the submission of briefs
by the Defendant and the Attorney General and oral argument, this
Court on November 21, 1969, upheld the power of the Attorney
General to seek judicial abatement of water pollution under Public
iaw 76-205. On Defendant's motion the Court held that the
Attorney General did not possess independant authority to seek
fines under the Illinois Sanitary Water Board Act, 111. Rev. Stat.,
Ch. 19, Section 145.1 et. seq. or to seek enforcement of the
Illinois Public Nuisance Act, 111.Rev.Stnt.,1967, Ch . 100-1/2.
Defendant thereupon filed an answer to the complaint.
6. On October 30, 1969, Defendant filed a motion to add
necessary parties and a motion for leave to file a counterclaim
against Plaintiffs for injunctive and declaratory relief. This
Court granted these motions on November 21, 1969.
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292
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V. Throughout. fA ;:^c proceeding:;, DefcnciarVi nas contended,
int f-r rn i a . that Plaintiffs have no right or authority to maintain
the instant actions and that Defendant has not violated any legal
obligations. Doth Plaintiffs have contended the contrary.
0. At the suggestion of the Court, the parties engaged in
extensive pre-trial discussion which included the exchange of
substantial factual information between technical experts acting
on behalf of the parties. These pre-trial discussions took place
on July 23 and 24, 1970; October 14, 1970; November 24, 1970;
Deccmbcr 15, 1970; December 23, 1970; and December 30, 1970.
During the intervals between these discussions, the parties'
experts evaluated the information obtained and prepared responses.
9. As a result of the technical information developed at
these discussions, each party believes that the public interest
will be best served by resolution of this controversy without
trial under the terms and conditions herein provided.
10. In these discussions, Defendant has represented that as
of December 31, 1970, it completed construction of its Waste Water
Control Program Step II designed, among other things, to eliminate
all direct discharge of process waste water to Lakfi.JJ-ir'h i gan.
(Process water is defined as water used in the process which, in
the normal course of operation, picks up chemical, liquid or solid
contaminants through contact, with production materials or materials
created as incidents of production.)
11. The subject of "thermal pollution" is not within the
scope of this stipulation.
ON THE BASIS OF, THE ABOVE STATEMCNTS, IT IS HEREBY STIPULATED
AND AGREED between Plaintiff, The Metropolitan Sanitary District
of Greater Chicago, Plaintiff, People of the State of Illinois
-3-
293
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through William J. Scott, Attorney General of the State of Illinois,
and Defendant, United States Steel Corporation, by the respective
attorneys for the parties hereto, as follows:
1. Subject to the commitments of the respective parties
contained herein, which commitments are express conditions precedent
to the Defendant's obligations and subject to the contingencies
outlined in paragraph six (6) below. Defendant agrees to construct
the following waste control facilities at i'ts South Chicago Works
at the completion of which no process water shall be discharged
to Lake Michigan or any other public waters:
a. A system which will recycle all process water on
the so-called "old line" or "South" blast furnaces.
(As part of a previous waste control program of
Defendant, Step II, the "new line"" or "North"
blast furnace process water was recycled). The
recycle system for the "old line" blast furnaces
shall be called Step III. Upon completion of the
recycle system for the old line furnaces, there
will be a total elimination of liquid blast fur-
jiace waste discharges from the South Chicago Works.
Construction of this system shall be completed no
later than October 31, 1972, and Defendant agrees
to make a good-faith effort to complete such
construction by June 30, 1972. A period of two
months after the date set for completion of con-
struction is allowed for start up and testing of
the facility resulting in satisfactory operation.
-4-
294
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b'. A system which v/ill recycle all process water from
the mill operations at the South Chicago Works.
This involves recycling all treated water-from the
Step II Central Treatment Plant and shall be called
Step IV. At the completion of Step IV, the only
process water discharged from the plant will consist
of "blow down" from the Step IV recycle system. (A
recycle system can be defined as the continuous reuse
of process waters. Rather than "once through" discharge
of process water, a recycle system reuses the process
water. As the process water is recycled, a build-up
of dissolved solids occurs which, if not diminished,
will hamper or prevent the operation of both production
and waste control facilities. To avoid such build-up,
relatively small amounts of process water, normally
comprising 5 to 12 percent of the waste water volume of
a "once through" discharge system, known as "blow down",
roust be removed from the system and replaced by fresh water.)
As a result of the reuse systems described herein total
process water discharge volume will be reduced from current
volume of 70,000 gallons per minute (GPM) to an amount not
to exceed 3700 gallons per minute (GPM).
The Step IV recycle system for the mill operations shall be
completed in three stages:
(i) Step IVa, the recycle construction for the south
side mills, will be completed not later than
October 31, 1974. A period of two months after
the date set for completion of construction is
allowed for start up and testing resulting in satis-
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295
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factory operation of the facility.
'(ii) Step IVb, the recycle construction for the
north side mills and other facilities, will
be completed not later than April 30, 1975.
A period of two months after the date set
for completion of construction is allowed for
start up and testing resulting in satisfactory
operation of the facility.
(iii) Step IVc, the recycle construction for the west
side mills, shall be completed not later than
October 31, 1975. A period of two months
after the date set for completion of construc-
tion is allowed for start up and testing re-
sulting in satisfactory operation of the facility.
2. Pending completion of Step IVc and connection to the
District sewerage system. Defendant shall achieve the following
results:
(a) At the end of Step IVa, treated process water volume
will have b'een reduced from a current 70,000 GPM,
to 42,000 GPM, and shall contain no more than 16
milligrams per liter (mg/1) of suspended solids
and 5 mg/1 of hexane soluble material at point
of entry to the Calumet River.
(b) At the end of Step IVb, treated process water volume
will have been reduced to 24,000 GPM, and shall con-
tain no more than 16 mg/1 of suspanded solids and
-6-
296
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5 my/l of hcxane soluble material at point of
entry to the Calumet River.
(c) The blow down at the end of Step IVc shall be
discharged to and accepted by the District and
shall be of a total volume not to exceed 3700 GPM,
and shall contain no more than 20 milligrams per
liter suspended solids, no more than 10 mg/1
hexane soluble material, and no more than 2,000
mg/1 dissolved solids.
The parties anticipate, based on representations made by the
Defendant, that the annual hourly average discharge of process
water blow down will be 2100 GPM. This final effluent, or "blow
down", from the plant shall not be deposited in either the Calumet
River or Lake I-'iichigan but shall, instead, be deposited into the
sewerage system of the District and shall be accepted for treatment
thereby. Nothing herein contained shall relieve Defendant from
any existing or future legal obligation for payment to the District
for the cost of treating effluent which the Defendant's South Chicago
Works shall deposit in the District's sewerage system.
Nothing herein contained, however, shall preclude the
Defendant from modifying the progran herein described so long as
the volume and effluent criteria set forth herein are met by the
dates stated, and so long as at the completion of the program no
process waste waters are discharged in Lake Michigan or any other
public waters. In the event of any substantial modification of
the program, Defendant shall notify the Plaintiffs in advance.
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297
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3. The District '"-cs to accept tor Lrcatn 1- at the conclusion
of Stop IVc and thereafter the effluent (blow, down) described above.
The agreement of the District to accept said effluent is expressly
contingent upon Defendant either, (a) being granted, by all appropriate
agencies, an allocation for diversion of v;ater from Lake Michigan in
the form of the said 3700 GPM maximum effluent (blow down) or, (b)
the issuance by a court of competent jurisdiction of an Order or the
issuance by the executive branch of Illinois of a ruling or opinion
binding upon state officials that, such allocation is not necessary as
a matter of law. Defendant agrees to pursue alternative (a) or (b), or
both.
4. As long as Defendant is not in material default herein,
the Plaintiffs agree to support any application by Defendant made
under paragraph 3 above, as well as any application to any arm of
the federal, state and municipal governments for a permit to connect
to existing sewer systems or which is essential to the construction
and operation of the waste control facilities contemplated herein.
5. During the period of carrying out the completion of the
waste program described herein. Defendant will furnish Plaintiffs
with quarterly reports of the work progress of the program and
submit effluent data to Plaintiffs on a regularly scheduled monthly
basis.
6. Should Defendant be obstructed or delayed in the commence-
ment, prosecution or completion of the work hereinabove referred to
by any act or delay of either Plaintiff, or by inability, with the
exercise of due diligence, to obtain necessary railroad and trans-
portation facilities, or by unavoidable acts or delays on the part
of transportation companies in transporting, switching or delivering
material for said work, or by any act or delay of agencies of the
-8-
298
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fi:d"iul, Gtntc or i.iunici -1 out horiticr;, or by act/ of public authorities,
or by riot, insurrection, Wiii, v^-stilenc-.-, fire, lightning,, earthquake,
cyclone-, v/ork slowdown, work stoppage or strike, or through. any delays
or eh-.'..ul. U. (if. oilier pjj'Lic:. un'.ier conLr<.ict with Defendant or due
to unavoidable delays in obtaining the specified materials or equip-
ment for said work or by delays hereinbefore specified which results
in performing v/ork under abnormal weather conditions beyond such
as usually occur during the times specified herein or due to other
causes beyond the control of the Defendant, then the time fixed for
the completion of said work may be extended by this Court on application
of any of the parties for a period equivalent to the time lost by
reason of any of the aforesaid causes.
7. (a) If the program shall become unlawful in the opinion "of
the Defendant, arid Defendant wishes to ^ease its obligations hereundcr,
Defendant shall make application to this Court to cease obligations
hereunder and if this Court determines that the program is unlawful,
Defendant's obligations shall thereupon cease. If the Court determines
that the program is lawful, Defendant's obligations shall continue sub-
ject to its right to appeal such determination. However, if the Court
fails to make such determination within 20 days from application, De-
fendant's obligations shall be suspended pending determination by this
Court.
(b) If Defendant's op-rations at South Works shall terminate
as a result of the application of a federal, state or municipal
law or regulation, or as a result of an administrative order, or an
order or decree of Court, or for any other reason, all obligations
of Defendant hereundcr shall cease.
8. Nothing contained in this stipulation or in any other document
filed with the Court herein, or stated in any meeting or hearing
-9-
299
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attended by representatives of the Plaintiffs and Defendant shall be
deemed in any way whatsoever a waiver by Defendant of its legal
positions taken in this proceeding including but not limited to its
denial of both Plaintiffs' right and authority to maintain this
action, and nothing contained in this stipulation or any other
document filed with the court herein, or stated in any meeting or
hearing attended by representatives of the Plaintiffs and Defendant,
shall be deemed in any way whatsoever a waiver.by either Plaintiff
of its respective legal positions taken herein, provided however,
that this provision shall not be deemed to be in derogation of the
obligations created hereunder.
9. On the signing of this Stipulation and the filing thereof
with the Court, and upon the- Court's approval, an Order shall be
entered dismissing without costs, to any party, all pending pro-
ceedings relating to violations of the temporary injunction entered
herein and-staying all other proceedings. Upon the completion and
satisfactory operation of Step III all other proceedings herein
shall be dismissed, without costs to any party, the court retaining
jurisdiction thereafter for the sole purpose of enforcing the remain-
ing rights and obligations created hereby.
-10-
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DATED: Chicago, Illinois
, 1971
act Eric Street
Chicago, Illinois
160 North La Salle Street
Chicago, Illinois
THE METROPOLITAN SANITARY DISTRICT
OF GREATER CHICAGO
Its Attorney
WILLIAM J. SCOTT/ Attorney General of
the State of Illinois
Hackbert, Rooks, Pitts,
Fullagar and Poust
208 South La Salle Street
Chicago, Illinois
UNITED STATES STEEL CORPORATION
By
I \ CV Its Attorney
-------
A-iiIIM.II!.!
U.S. STEEL CORPORATION - U.S. ENVIRONMENTAL PROTECTION AGENCY
United States Steel Corporation (the Permittee) and the ^
United States Environmental Protection Agency (the Agency) hereby
stipulate and agree to the provisions set forth herein. Any NPDES
permit issued heretofore or hereafter under the Water Pollution Control
Act Amendments of 1972 (the Act) for facilities of Permittee by the
U.S. Environmental Protection Agency, shall be considered to be
subject to the terms and provisions of this Agreement notwithstanding
any contrary provisions contained in such permit.
1. The Agency believes that the Federal Water Pollution Control
Act Amendments of 1972 authorizes the Agency to include in an NPDES
permit a condition authorizing modification of an issued flPDES permit
in order to include conditions to ensure compliance with any toxic
standard established under Section 307 of the Act if such standard
is more stringent than any limitation in the permit.
2. The Permittee believes that the Act authorizes the modification
of an issued NPDES permit to include such standard only in the case of
a toxic pollutant injurious to human health.
3. The Permittee shall not raise with U.S. Environmental
\
Protection Agency this issue of the Agency's authority under
Sections 402 and 307 until such time as (1) toxic standards are
established and, (2) the Agency seeks to modify a permit issued to
the Permittee in order to include such toxic standards. This paragraph 3
shall in no way limit Permittee's right under Section 509 of the Act
to contest the promulgation of any toxic standard.
EXHIBIT: B
302
-------
4. On the matter of toxic pollutants, all U.S. Steel perm ti
shall be subject to the followirg provision. If a toxic effluent
standard or prohibition (including any schedule of compliance specified
in such effluent standard or prohibition) is established under Section
307(a) of the Act for a toxic pollutant which is present in the discharge
and such standard or prohibition is more stringent than any limitation
for such pollutant in the permit, and the Agency seeks to revise
or modify the permit in accordance with the toxic standard or
prohibition, the Permittee shall have notice and opportunity for
hearing, with right of appeal, on the method of application of the
toxic standard or prohibition if such application requires the use
of discretion, judgment or calculation by the permitting Agency.
5. If the Agency seeks to modify an NPDES permit in order to
impose a toxic standard established under Section 307 of the Act, the
Permittee shall have the right at that time to raise in an administrative
and judicial review of such matter the issue of whether the Act authorizes
the Agency to so modify an issued NPDES permit. The Permittee may
petition for a stay while seeking any administrative and judicial
review hereunder.
6. The Permittee believes that the following clause is necessary
to carry out the provisions of the Act and should be inserted in an
NPDES permit:
"The Agency stipulates that the Permittee retains the right
to raise force majeure defenses such as an act of God, strike,
flood, material shortage or other event over which the Permittee
has little or no control."
7. The Agency believes that the insertion of a "force mr.jeure"
clause in an NPOES permit such as that noted in clause 6 above is
not necessary to carry out the provisions of the Act.
8. If the Agency seeks to enforce any provision of any NPDES
permit issued to the Permittee by any permitting Agency the Permittee
may raise at that time the question of whether it is entitled to such
"force majeure" defenses under the constitution, statute, or decisional
law.
303-
-------
9. The Agency does not stipulate that such "force ir.ajeure"
defenses exist under the constitution, statute, or decisional law.
This Agreement shall supercede the Agreement signed by Messrs.
Mallick, Kirk and Corkin dealing with the same subject matter and
dated August 13, 1974, July 31, 1974, and September 17, 1974,
respectively.
Dated by the last signatory hereto:
Alan G. Kirk
Assistant Administrator for
Enforcement and General Counsel
U.S. Environmental Protection Agency
Charles Corkin II
Counsel for Administrative Litigation
U.S. Environmental Protection Agency
'Earl W. Mai lick
Vice President
U.S. Steel Corporation
304
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF LAW
PURSUANT TO 40 C.F.R. Section 125.36(m)
No. 23
In the matter of National Pollutant Discharge Elimination System
Permits for United States Steel Corporation, PA 0004472, Clairton Works;
PA 0004073 Edgar Thomson-Irvin Works; PA 0004481 Homestead Works;
PA 0004464 National-Duquesne Works, the Presiding Officer has certified
seven issues of law to the Office of General Counsel for decision pur-
suant to 40 C.F.R. 125.36(m) (39 F.R. 27078, July 24, 1974). The parties
and intervener, Western Pennsylvania Water Company, having had the
opportunity to provide written briefs in support of their respective
positions, present the following issues:
ISSUE OF LAW NO. I
Question Presented
"Is an adjudicatory hearing the proper forum for challenging
guidelines promulgated pursuant to Section 304 of the Federal Water
Pollution Control Act as amended?"
Conclusion
No. Challenges to effluent guideline limitations are to be brought
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only in a judicial forum and may not be raised in administrative
proceedings such as an adjudicatory hearing.
Discussion
The question of the scope of the adjudicatory hearings is dis-
cussed in the Decision of the General Counsel No. 3 (March 6, 1975).
In that Decision we concluded that challenges to the technical and
legal sufficiency of effluent limitations guidelines were to be brought
exclusively in the United States Courts of Appeals pursuant to Section
509(b)(l)(E) of the Act. Since that date the United States Court of
Appeals for the Eighth Circuit has ruled that judicial review of
effluent limitations guidelines is properly sought in the district
courts under the Administrative Procedure Act rather than directly
in the Courts of Appeals. CPC International, Inc. v. Train (8th Cir.
May 5, 1975) F.2d , 7 ERG 1887.
Even though the General Counsel's Decision No. 3 was issued prior
to CPC International the principle it ennunciated remains valid, i.e.,
challenges to the guidelines are to be brought in a judicial forum and
may not be raised in the NPDES administrative proceedings. The only
effect of CPC International, if its holding were to be followed by the
other Circuit Courts which have the question before them, is to alter the
judicial forum from appellate to district courts.
In similar circumstances the Supreme Court has upheld the denial of
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an adjudicatory hearing on issues which were governed by a substantive
rule of general applicability. United States v. Storer Broadcasting
Company. 351 US 192, 100 L.Ed. 1081, 76 S. Ct. 763 (1956). See also
National Petroleum Refiners Association v. FTC, 482 F.2d 672 (D.C. Cir.
1973).
Rulemaking, as these cases recognize, is designed to increase the
efficiency, expedition, and certainty in an agency's regulatory programs
It does so by reducing the issues which must be resolved in the appli-
cation of a broad statutory standard to the facts of particular cases.
If each regulates were permitted to raise in individualized hearings the
very questions addressed by the regulation, then, as the court in Storer
observed, "the rule would no longer be a rule" and its principle
advantage would be eliminated.
Efforts to challenge the basis for effluent guidelines are, in
essence, attempts to reopen, on a case by case basis, the levels of
effluent reduction attainable by the "best practicable control tech-
nology currently available." The intended function of the guidelines,
however, and their very justification for existence is to preclude the
necessity of such ad hoc determinations in every case. Storer and
National Petroleum support the Agency's conclusion that this is not
required. Of course, the question of which guideline applies to a
particular plant, what limits are appropriately derived from the guide-
line, and whether a plant is entitled to a variance from the guideline
are proper subjects for adjudicatory hearings.
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Moreover, opening the adjudicatory hearing to challenges to the
regulations themselves would produce absurd results. The initial
decision of the Regional Administrator is reviewable by the Administrator
under 40 CFR 125.36. Were issues of the guidelines' validity to be
decided by the Regional Administrator, these would then be reviewable
by the Administrator. In effect, the Administrator would then be
required to pass repeatedly upon the validity of regulations which he
himself had recently promulgated.
ISSUE OF LAW NO. II
Question Presented
"Where effluent limitations in a permit for a point source are
based upon guidelines promulgated pursuant to Sections 301 and 304 of
the FWPCA Amendments of 1972 which are the subject of a pending pro-
ceeding for judicial review in which applicant is a party, must that
portion of the permit based on the guidelines be stayed pending the
outcome of judicial review?"
Conclusion
No. That portion of a permit based on effluent limitations/guide-
lines promulgated pursuant to Sections 301 and 304, which is the subject
of a pending proceeding for judicial review, need not be stayed by EPA
pending the outcome of the judicial review.
Discussion
As it was discussed in Decision of the General Counsel No. 3
(March 6, 1975), Section 509(b)(l)(E) allows a permit applicant to
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challenge EPA's foundation in establishing effluent limitations on an
industry-wide basis within 90 days of promulgation. This litigation
would, of course, concern itself solely with the validity of the
promulgated regulation as applied industry wide.~ It would not,
normally, include questions of applicability of the regulation to a
specific point source discharge. Should a permit applicant in the
process of receiving his permit also be challenging the effluent
regulation, he may, of course, petition the court reviewing that
regulation for a stay in either the effectiveness of the regulation
or an injunction precluding the Environmental Protection Agency from
issuing a permit based upon it. To do this, of course, would require
the permit applicant to demonstrate a substantial likelihood of success
on the merits and irreparable harm.
The Act permits the Administrator, after opportunity for public
hearing, to "issue a permit for the discharge of any pollutant, or
combination of pollutants, notwithstanding Section 301(a), upon condition
that such discharge will meet either all applicable requirements under
sections 301, 302, 306, 307, 308, and 403 of this Act, or prior to the
taking of necessary implementing actions relating to all such requirements,
such conditions as the Administrator determines are necessary to carry
out the provisions of this Act."(Sec. 402) Should an applicable effluent
II
As would judicial review of the regulations in the district
courts, under the holding of CPC International, supra.
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regulation, for example, be overturned, the Administrator would remain
in a position to issue a permit under Section 402. In such a situation,
the Administrator would make a determination concerning the discharge
and, where there were no applicable requirements under Section 301,
through an effluent limitation and guideline promulgated pursuant to
that section and Section 304, the Administrator could nevertheless
issue a permit containing such conditions as the Administrator determines
are necessary to carry out the intent of the Act.(See Decision of the
General Counsel No. 4, April 4, 1975)
Section 402 states clearly that if there are applicable require-
ments under Section 301, the Administrator may issue a permit based
upon those requirements. The fact that regulations imposing such
requirements may subsequently be modified by a court or by further
Agency proceeding is irrelevant. The fact remains that the regulations
were promulgated pursuant to Section 301 and are effective rules of
the Agency. Accordingly, the Agency may issue point source discharge
permits based on such regulations so long as they remain in effect.
Even if a stay were issued by a court, the Administrator still has the
authority to issue a permit pursuant to Section 402 of the Act.
Given EPA's authority to issue permits independent of guideline
limitations regulations as well as the need for their existence to
effect the general objectives of the Act enunciated in Section 101(a)
there is ample justification for continuing to enforce challenged sections
of permits pending their ultimate judicial resolution.
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ISSUE OF LAW NO. Ill
Question Presented
"Where effluent limitations in a permit for a point source are
based upon guidelines promulgated pursuant to Sections 301 and 304 of
the FWPCA Amendments of 1972 which are the subject of a pending pro-
ceeding for judicial review in which applicant is a party, should
applicant's individual permit be revised to provide that any modi-
fication of the point source category guidelines as a consequence of
judicial review or administrative action will be incorporated into its
permit subject to applicant's right to request an adjudicatory hearing
at that time concerning the application of such guidelines to its
permit?"
Conclusion
No. The Administrator is not required by applicable law to
include such a condition in a permit. However, exercising its dis-
cretion, the Agency will consider requests for modification of a
permit where modification of a regulation issued under Sections 301
and 304 results from court order in the manner specified in the
memorandum from the Assistant Administrator for Enforcement and
General Counsel dated December 23, 1974 ("Subject: Impact of Effluent
Guidelines Litigation Upon Issued NPDES Permits"). The memorandum is
attached to the Decision of the General Counsel No. 3 referred to
above.
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ISSUE OF LAW NO. IV
Question Presented
"Where effluent limitations in a permit for a point source are
based upon guidelines, promulgated pursuant to Sections 301 and 304
of the FWPCA Amendments of 1972 which are the subject of a pending
proceeding for judicial review in which applicant is a party, should
applicant's individual permit be revised to provide that any modification
of the point source category guidelines as a consequence of judicial
review or administrative action will be incorporated into its permit
subject to the applicant's right to request a variance from such guide-
lines at such time as the guidelines become final?"
Conclusion
No. As explained in answer to issue III, there is no necessity
for individual permits to incorporate a provision requiring revision
of the permit to reflect modifications in the effluent limitations
guidelines resulting from later judicial review of those guideline reg-
ulations. Where those regulations are so modified, requests for permit
modification will be considered in accordance with the December 23,
1974, memorandum referred to above.
The applicant's right to request a variance from the modified
regulations depends, of course, upon whether the regulations as modi-
fied contain a provision authorizing variances comparable to that now
included in most effluent regulations.
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ISSUE OF LAW NO. V
Question Presented
"If the portion of the individual permit based on the guidelines
is stayed pending judicial review of the guidelines or if applicant's
permit is revised to provide that any modification of the guidelines
as a result of judicial review or administrative action will be
incorporated into its permit, should any effluent limitations finally
incorporated into applicant's permit be consistent with the amount of
time applicant will have remaining prior to July 1, 1977, in which to
install additional control equipment?"
Conclusion
Procedures for the revision of NPDES permits based upon court
ordered modified effluent guidelines will be those specified in 40
CFR Part 125. Public notice shall be provided for each proposed
permit revision. Any interested party may request an adjudicatory
hearing on the Regional Administrator's tentative determination to
grant or deny a request for permit revision.
If other permit requirements are based upon effluent limitations
which are revised pursuant to this policy, those other requirements
may have to be adjusted accordingly. For example, a revised, less
stringent effluent limitation may be achievable in a shorter period of
time than had been allowed in the original permit schedule of compliance.
If so, the schedule should be reduced in accordance with the shortest
reasonable period of time principle specified in the NPDES regulations.
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Similarly, it may be appropriate in some cases to revise monitoring
requirements with respect to revised effluent limitations.
Whatever permit revisions the court ordered effluent limitations
modifications might require, the Environmental Protection Agency has
no authority under Section 402(a) of the Act to issue a permit which
would authorize the installation of the required control equipment,
necessary to meet the requirements of "best practicable control tech-
nology," after July 1, 1977.
ISSUE OF LAW NO. VI-A
Question Presented
"Are the regulations for the National Pollutant Discharge
Elimination System in 40 C.F.R. Part 125, as subsequently amended,
unlawful because they deny permittee due process of law and violate
the Administrative Procedure Act by placing upon permittee the burden
of proof and of going forward with the evidence?"
Conclusion
The referral of issues of law to the General Counsel, provided
for in 40 C.F.R. Part 125, is to insure that provisions of the Federal
Water Pollution Control Act and implementing regulations issued
thereunder are applied uniformly in permit issuance proceedings con-
ducted in the several Regional Offices. The intent of 40 C.F.R
125.36(m) is to enable questions concerning the interpretation of the
Act and pertinent regulations to be resolved in this office. The issue
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of law presented herein, on the other hand, involves a question of
Federal constitutional law. As such, the issue is more appropriately
presented to a United States Court of Appeals on appeal from final
Agency action on the permits.
ISSUE OF LAW NO. VI-B
Question Presented
"Are the regulations for the National Pollutant Discharge Elimination
System in 40 C.F.R. Part 125, as subsequently amended, unlawful because
they deny permittee due process of law and violate the Administrative
Procedure Act by limiting permittee to written testimony submitted
prior to the hearing?"
Conclusion
The issue, raising as it does constitutional issues, is beyond the
scope of issues referrable to the General Counsel.
ISSUE OF LAW NO. VI-C
Question Presented
"Are the regulations for the National Pollutant Discharge Elimination
System published in 40 C.F.R. Part 125, as subsequently amended, unlawful
because they deny permittee due process by providing no discovery or
subpoena rights to permittee?"
Conclusion
The Federal Water Pollution Control Act contains no authority for
the Agency to issue subpoenas in connection with the issuance or modifi-
cation of permits under Section 402 of the Act. The Agency's ability
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to obtain information from applicants is confined to the authority
conferred by Section 308 and it has no more authority than applicants
to compel production of evidence from third parties. Applicants, of
course, have available to them the provisions of the Freedom of
Information Act, 5 USC Section 552, to discover documents within the
Agency's custody.
Whether the absence of subpoena power for permit applicants in
the Act and the regulations constitute a denial of due process is a
question beyond the scope of issues of law referrable to the General
Counsel.
ISSUE OF LAW NO. VI-D
Question Presented
"Are the regulations for the National Pollutant Discharge Elimination
System published in 40 C.F.R. Part 125, as subsequently amended, unlawful
*
because they deny permittee due process of law by binding the Regional
Administrator to the Presiding Officer's rulings on the admission of
evidence?"
Conclusion
The Regional Administrator is not bound by the Presiding Officer's
rulings on the admission of evidence despite the language of 40 C.F.R.
126.36(i)(6)- This conclusion follows because this provision is
intended to establish procedural findings as final for the purposes of
the hearing and to prevent interlocutory review of the Presiding Officer's
decisions. Given its limited purpose and the fact that it is not meant
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to preclude substitution of the Regional Administrator's judgment
for that of the Presiding Officer, the Regional Administrator is not
thereby barred from modifying rulings of the Presiding Officer and
taking appropriate action, including a remand for the purpose of in-
troducing evidence initially excluded.
ISSUE OF LAW NO. VI-E
Question Presented
"Are the regulations for the National Pollutant Discharge Elimination
System published in 40 C.F.R. Part 125, as subsequently amended, unlawful
because they deny permittee due process of law by placing the final
decision of which issues submitted by the parties should be classified
as issues of law upon the Presiding Officer?"
Conclusion
This issue, raising as it does constitutional issues, is beyond
the scope of issues referrable to the General Counsel.
ISSUE OF LAW NO. VI-F
Question Presented
"Are the regulations for the National Pollutant Discharge Elimination
System published in 40 C.F.R. Part 125, as subsequently amended, unlawful
because they deny permittee due process of law and violate the Administrative
Procedure Act by preventing the Presiding Officer from rendering the
initial decision?"
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Conclusion
No. Assuming that the Administrative Procedure Act, 5 U.S.C. 551
et seq, applies to the issuance of NPDES permits, it is clear that the
requirements of 5 U.S.C. 554(d) concerning the Presiding Officer's
obligation to issue an initial decision do not apply in cases such as
this which constitute initial licensing. See 5 U.S.C. 554(d)(A),
5 U.S.C. 557 (b).
To the extent that this question raises constitutional issues, it
is beyond the scope of issues referrable to the General Counsel.
ISSUE OF LAW NO. VI-G
Question Presented
"Are the regulations for the National Pollutant Discharge Elimination
System published in 40 C.F.R. Part 125 as subsequently amended, unlawful
because they permit the Regional Administrator and the Administrator to
consider issues outside the record of the adjudicatory hearing in
reaching their decisions?"
Conclusion
The provision of the NPDES regulations referred to by the
requestors, 40 C.F.R. 125.36(n)(12). authorizes the Administrator to
decide appeals from the initial decision of the Regional Administrator
on the basis of the record presented and other considerations he deems
relevant. The regulations do not expressly authorize consideration of
matters outside the record of the adjudicatory hearing by the Regional
Administrator.
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The'question of whether consideration of material outside the
record of the hearing by the Administrator would deny a permit
applicant "procedural due process" is a matter of constitutional law
properly addressed in the Courts of Appeals.
ISSUE OF .LAW NO. VI-H
Question Presented
"Are the regulations for the National Pollutant Discharge Elimination
System published in 40 C.F.R. Part 125 as subsequently amended, unlawful
because they deny permittee due process of law by permitting the
Administrator to decline to review a permittee's appeal from the decision
of the Regional Administrator?"
Conclusion
This issue, raising as it does constitutional issues, is beyond
the scope of issues referrable to the General Counsel.
ISSUE OF LAW NO. VII
Question Presented
Whether the Agency is authorized to impose the condition set
forth in Section 10 of the permit entitled "Additional Monitoring
by Permittee."
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Conclusion
No facts or arguments were submitted to aid response to this
question and the requestor did not address it. For those reasons no
attempt has been made to respond to the question.
Robert V. Zener
General Counsel
JUL3 1975
Date:
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF LAW
PURSUANT TO 40 C.F.R. Section 125-36(m)
No. 24
In the matter of National Pollutant Discharge Elimination
System Permit for United States Steel Corporation, PA 0004081,
Christy Park Works, the Presiding Officer has certified seven issues
of law to the Office of General Counsel for decision pursuant to
40 C.F.R. 125-36(m) (39 F.R. 27078, July 24, 1974). The parties and
intervener, Western Pennsylvania Water Company, having had the
opportunity to provide written briefs in support of their respective
positions, present the following issues:
ISSUES OF LAW NUMBERS I THROUGH VI
Conclus ion
These questions are identical to those raised by United States
Steel Corporation in an earlier permit proceeding. The decisions
rendered on those six questions control the resolution of these six
questions. (See Decision of the General Counsel on Matters of Law,
No. 23, July 3, 1975).
ISSUE OF LAW NUMBER VI I
Question Presented
Whether the effects of storm water run-off may be considered
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in determining violations of an NPDES permit.
Conclus ion
This question is ambiguous in scope and was not addressed by
the requestor or the intervener in their briefs. For those reasons
no attempt has been made to respond to the question.
Robert V. Zener //
General Counsel ^
JUL 22 1975
Dated:
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 C.F.R. §125.36(m)
No. 25
In the matter of National Pollutant Discharge Elimination
System permits for Wheeling-Pittsburg Steel Corporation, WV0004502
and WV0004499, the Presiding Officer has certified one issue of law
to the General Counsel for decision pursuant to 40 CFR §125.36(n)
(39 F.R. 27078, July 24, 1974). The parties, i having had the
opportunity to provide written briefs in support of their respective
positions, present the following issues:
ISSUE OF LAW NO. I
Question Presented
"Is the Environmental Protection Agency required to hold a
hearing on the question whether an effluent limitation or other permit
condition proposed by a State is arbitrary, capricious, unreasonable
or not in accordance with law before including such limitation or
condition in a federal permit and making it federally enforceable?"
FMC Corporation, was granted the opportunity to file a
brief amicus in this proceeding. The amicus brief was
received and considered in my conclusion and discussion
of this issue of law.
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Conclusion
EPA is neither authorized nor required to hold an adjudicatory
hearing on questions involving conditions of a permit required by the
terms of a State certification provided pursuant to section 401 of the
Act. Where effluent limitations, monitoring requirements and other
appropriate state requirements are set forth to EPA in a certification
from a State pursuant to section 401, section 401(d) provides that
they shall "become a condition on any federal license or permit"
without any further federal action or review.
Discussion
This specific issue was addressed in Decision of the
General Counsel on Matters of Law Nos. 13, 14, and 17. The
discussions contained therein will not be repeated here. The
permit applicant in this case has argued an analogy to the
Clean Air Act exists in that State implementation plans, which
must be approved by this Agency, may not be approved without
independent consideration by EPA of whether the state standards
are arbitrary, capricious, or not consistent with relevant
regulations under federal law.
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Saint Joe Minerals Corporation v. EPA, 508 F.2d, 743 (3d Cir. 1975);
Buckeye Power, Incorporated v. EPA, 481 F.2d, 162 (6th Cir. 1973);
Duquesne Light Company v. EPA, 481 F.2d, 1 (3d Cir. 1973) and
Appalachian Power Company v. EPA, 477 F.2d, 485 (4th Cir. 1973).
We disagree with the conclusion that the cited cases are
controlling here. In those cases the Administrator was required
by statute (§110 Clean Air Act) to approve or disapprove the
state plan. Certifications received pursuant to section 401
however, are not subject to EPA approval or review and,
therefore, the above cases dealing with the federal action in
approving state standards are not relevant. Section 401(d)
provides that conditions furnished by a state pursuant to a
section 401 certification "become a condition on any federal
license or permit." While each such permit limitation would
become a limitation on any permit issued by the Environmental
Protection Agency and would thereby be enforceable pursuant
to federal law, such a result was clearly intended by
Congress in its not providing for a substantive federal
review of the state action. Further, there is no
requirement contained in section 401 that the Administrator
even include such conditions in his permit. EPA's act
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of including such conditions in permits is purely a ministerial act
involving no substantive federal action. This being the case, it
is our conclusion that no federal hearing is required on these issues,
because the decision maker in an NPDES proceeding has no substantive
role in determining whether or which conditions in a certification
become conditions on the permit and no useful purpose would be served
by allowing evidence relating to the certification to be introduced
in the proceeding. If a permit applicant believes a state certification
to be invalid, for whatever reason, his recourse is against the state
certifying agency.
Robert V. Zener
General Counsel
JUL 2 2 1975
Dated:
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 CFR §125.36(m)
No. 26
In the matter of National Pollutant Discharge Elimination
System for Bethlehem Steel Corporation, Bethlehem, Pennsylvania
(PA 0011177), the Presiding Officer has certified one issue of law
to the General Counsel for decision pursuant to 40 CFR §125.36(m)
(39 FR 27078, July 24, 1974). The parties, having had the opportunity
to provide written briefs in support of their respective positions,
present the following issue:
ISSUE OF LAW NO. I
Question Presented
"May the Environmental Protection Agency establish an effective
date for final permit conditions later than July 1, 1977, where final
permit conditions are based upon the best practicable control technology
currently available and on water quality standards?"
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Conclusion
Section 301, subsections (b)(1)(A) and (b)(1) (C) of the Federal
Water Pollution Control Act, as amended (the "Act"), while representing
an interim step in the achievement of the goals of the Act set forth
in section 101, clearly requires the achievement, by July 1, 1977, of
effluent reductions based on the more stringent requirements
of either section 301(b)(l)(A) or section 301(b)(l)(C) of the Act.
The Administrator has no discretion to extend the date of
compliance.
Discussion
The applicant urges that the requirements of section
301(b)(l)(A) and (C) are merely interim steps in achieving the ulitmate
goals of the Act set forth in section 101, and that in view of the
Administrator's delay in the implementation of certain provisions of
the Act !], the "Act does not arbitrarily establish July 1, 1977 as
the compliance date for all sources or the Act is an unconstitutional
deprivation of due process." (Brief of Bethlehem Steel, page 8).
The applicant does not state which conditions in its permit derive
from effluent regulations promulgated pursuant to sections 301 and
304, which from water quality or other considerations of
301(b)(1)(C), or which have been derived ad hoc pursuant to
section 402(a)(1).
1] The delay alluded to concerns the promulgation of the
"Phase II" effluent regulations for the Iron & Steel
Manufacturing Point source category.
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The gravamen of the applicant's complaint here is that due to
administrative delays, it will be unable to achieve the effluent
reductions required by section 301, as implemented in the permit,
by July 1, 1977 and that it should therefore be permitted to
achieve the required effluent reductions in 1978 or 1979. I
cannot agree with this conclusion.
First, the Agency has promulgated effluent regulations applicable
to a portion of the applicant's discharge. 40 CFR §420.40 et seq. ^
These regulations set forth, as of the date of their promulgation,
a definition of the reductions in discharge which must be achieved by
July 1, 1977 in order to constitute the "best practicable control
technology." The permit applicant here does not appear to be challenging
the promulgated regulation applicable to its discharge but only the
date by which it must be met. The regulation, however, merely
defines, for particular industrial subcategories what Congress has
directed to be achieved by that date. Thus, insofar as this
question relates to the achievability of the effluent regulations by
July 1, 1977, the argument must be viewed as a challenge to the
regulation itself rather than the date by which it is to be achieved.
2] The "Phase I" Iron & Steel regulations were promulgated on
June 28, 1974 (39 Fed Reg 24114). Applicant has challenged
these regulations in the U.S. Court of Appeals for the Third
Circuit and has requested that the Court stay their
applicability. Bethlehem Steel Corporation et al v. EPA,
No. 74-1642.
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Getty Oil Company v. Ruckleshaus, 467 F.2d 349 (3rd Cir. 1972),
cert, den. 93 S. Ct. 937 (1973). We have previously held that
this proceeding is not available as a forum to challenge promulgated
effluent regulations. See Opinions of the General Counsel Numbers 3
(March 6, 1975) and 23 (July 3, 1975).
With respect to those portions of the permit which may have
been derived from requirements imposed pursuant to section 301(b)(1)(C),
Opinions of the General Counsel Numbers 13 (May 19, 1975) and 14
(May 21, 1975) conclude that EPA is required to include conditions
in its permits requiring compliance with section 301(b)(l)(C) by
July 1, 1977-
To the extent portions of the permit neither have been derived
from effluent regulations promulgated pursuant to sections 301 and
304 nor required pursuant to section 301(b)(1)(C), Opinions of the
General Counsel Numbers 1, (September 5, 1974) and 3 (March 6, 1975),
conclude that in issuing permits prior to the promulgation of
effluent regulations pursuant to section 304, a determination of
what constitutes best practicable control technology is a factual
issue to be resolved in the administrative process pursuant
to section 402(a)(1).
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Thus, section 301 compels that its substantive requirements
be achieved by July 1, 1977. This is the clear language and
meaning of the statute. "If the language admits of not more
than one meaning, the duty of interpretation does not arise..."
Caminetti v. United States, 242 U.S. 470, 485 (1917). There is,
accordingly, no need to refer to the legislative history.
Robert V. Zener
General Counsel
Dated: JU^ ^ «75
331
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, B.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 C.F.R. §125.36(m)
No. 27
In the matter of the National Pollutant Discharge Elimination System
Permit for Inland Steel Company, Indiana Harbor Works, NPDES Permit
No. IN-0000094, Hearing Docket No. NPDES-V-026 (AH), the presiding officer
has certified eight issues of law to the General Counsel for decision
pursuant to 40 C.F.R. §125.36(m) (39 F.R. 27078, July 24, 1974). The
parties, having had the opportunity to provide written briefs in
support of their respective positions, present the following issues:
ISSUE OF LAW NO. 1
Question Presented
Whether it is permissible to utilize a Load Allocation Summary,
generated for purposes of Section 303(d) of the Act, to set discharge
limitations in a permit or under Section 301(b)(1) (C) .
CONCLUSION
It is permissible to use a Load Allocation Summary in establishing
discharge limitations to comply with water quality standards.
DISCUSSION
Section 301(b)(l)(C) of the FWPCA requires the achievement of
limitations to meet, inter alia, "water quality standards . . . estab-
lished pursuant to any State law . . . ." As I have stated previously,
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if such limitations are included in a State certification under
§401 of the Act, they must be included in a permit without further
Federal action or review. In the absence of a State certification,
EPA must itself interpret and apply relevant State regulations
and statutes. Decisions of the General Counsel on Matters of Law
No. 13, May 19, 1975; No. 14, May 21, 1975; and No. 17, June 16, 1975.
Neither the statement of referred issues nor the briefs of the parties
indicate that a certification exists. Accordingly, I assume for the
purposes of this opinion that no certification exists and that EPA
must evaluate itself the requirements of State water quality standards.
Absent a certification, the determination of the limitations
necessary to comply with water quality standards must be made by the
Administrator on the basis of the factual record. Although a Load
Allocation Summary prepared pursuant to §303(d) is not conclusive
under the law, as is a certification, such allocation is clearly
entitled to weight in the Administrator's determination. Section 303(d)
(1)(C), requiring the State to establish a maximum daily load for
suitable pollutants, —' provides that "such load shall be established
at a level necessary to implement the applicable water quality
standards with seasonal variations and a margin of safety . . . ." In
the absence of a certification, such a summary would be relevant evidence
concerning the limitations required to implement water quality standards.
!_/ The failure of the Administrator to identify, pursuant to §304(a)(2),
those pollutants for which daily load calculation is suitable does not
preclude the State from performing that function voluntarily, even
though the State would only be required to perform the calculation
for those pollutants identified by the Administrator.
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3
ISSUE OF LAW NO. II
Question Presented
Whether conditions with respect to deep wells are proper permit
conditions in an NPDES permit issued by the EPA.
CONCLUSION
Such conditions are proper.
DISCUSSION
This issue has been decided previously (Decision on Matters of
Law No. 6, April 8, 1975; No. 8, April 14, 1975; No. 18, June 25, 1975)
and need not have been referred.
ISSUE OF LAW NO. Ill
Question Presented
Whether a schedule of compliance is authorized by the Act.
CONCLUSION
Schedules of compliance are required to be included in NPDES
+
permits, in accordance with 40 C.F.R. §125.23.
DISCUSSION
40 C.F.R. §125.23 sets forth the circumstances under which the
Regional Administrator is required to include schedules of compliance
in issued NPDES permits. Subsection (b) of that section provides that
"In any case where the period of time for compliance specified in
paragraph (c) of this section exceeds 9 months, a schedule of compliance
shall be specified in the permit which will set forth interim
requirements and the dates for their achievement . . . ."
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4
The term "schedule of compliance" is defined in the regulations
(40 C.F.R. §125.1(aa)) precisely as that term is defined in the
statute (§502(17)), to mean "a schedule of remedial measures including
an enforceable sequence of actions or operations leading to compliance
with an effluent limitation, other limitation, prohibition, or
standard."
The permittee (Inland) has limited its objection to the "interim
planning or construction deadlines" set forth in the permit schedule
of compliance. Inland claims that although the permit may set a date
for final compliance with effluent limitations, it may not require
"submitting various plans and reaching various plateaus in the course
of construction." The permittee further argues that failure to meet
a compliance schedule (other than the final date for compliance with
limitations) has no potential effect on the environment, and that the
permittee should have the option of doing nothing to abate its dis-
charge and simply shutting down facilities one day before the
ultimate compliance date.
The permittee's arguments turn the Act on its head. Section 301
makes it clear that no one has a right to continue discharging
pollutants until July 1, 1977. See S. Kept. No. 92-414, 92d Cong.,
1st Sess. at 40. An NPDES permit is merely a license to continue
discharging which is conditioned upon taking remedial steps as
quickly as feasible to arrive at statutorily mandated reduced levels
of discharge. A discharger who planned to do nothing to clean up
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5
might well be refused this license. Moreover, failure to meet a
compliance date could result in failure to meet the ultimate
limitations. As the Senate Report notes, "The Committee has added a
definition of schedules and time-tables of compliance so that it is
clear that enforcement of effluent limitations is not withheld until
the final date required for achievement." S. Kept. No. 92-414, supra
at 77. Because "effluent limitations" are defined (§502(11)) to
include "schedules of compliance", it is clear that the intermediate
actions and operations leading to compliance with the ultimate
limitations are just as enforceable as the ultimate limitations
themselves. (See also the discussion in Decision of the General
Counsel No. 19, June 23, 1975, (Issue of Law No. I).
ISSUE OF LAW NO. IV
Question Presented
Whether Paragraph B.5, Toxic Pollutants, is unreasonable and
contrary to the intent of the Act in that it requires a permittee to
accept toxic pollutant standards which the permittee might be otherwise
contesting pursuant to its rights under the Act.
CONCLUSION
The provision is properly included.
DISCUSSION
This issue is clearly resolved by Decision of the Assistant
Administrator for Enforcement and General Counsel on Matters of
Law No. 2, December 30, 1974 (Issue of Law No. Ill), and need not
have been referred.
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6
ISSUE OF LAW NO. V
Question Presented
Whether the intake monitoring condition on page 40 of 44 is a
proper NPDES permit condition under Section 402 of the Act.
CONCLUSION
A permit condition is proper which requires intake structure
effects studies, where related to a determination under §316(b)
of the Act.
DISCUSSION
Discussion of the disputed permit condition is necessarily
hypothetical, because neither the parties' briefs nor the letter of
referral from the Administrative Law Judge include the provision in
question. The brief submitted by the EPA Regional Office states
that the condition requires the discharger "to make studies to
determine the effect of its intake structures and to implement the
best technology available for such structures." The permittee's
brief objects only to "the inclusion of [an intake] study as a
condition of its NPDES permit." U
2J "The permittee does not object to intake studies per se; they are expressly
~ governed by §316(b)." Section 316(b) provides:
(b) Any standard established pursuant to section 301
or section 306 of this Act and applicable to a point
source shall require that the location, design,
construction, and capacity of cooling water intake
structures reflect the best technology available
for minimizing adverse environmental impact.
337
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7
Section 402(a)(1) authorizes the Administrator to issue a permit
upon condition that a discharger comply with "sections 301, 302, 306,
307, 308, and 403 of this Act . . . ." Section 308, in turn, authorizes
the Administrator, "Whenever required to carry out the objective of
this Act, including but not limited to (1) developing or assisting in
the development of any effluent limitation, or other limitation . . .
[to] require the owner or operator of any point source to ... make
such reports, . . . install, use, and maintain such monitoring
equipment or methods (including where appropriate, biological moni-
toring methods), . . . and . . . provide such other information as
he may reasonably require . . . ." The only limitations upon this
broad grant of authority are that the monitoring provisions must be
"reasonably" required by the Administrator, and must be "required to
carry out the objective of this Act".
Section 316(b) requirements must be implemented though §§301 and
306. They are thus "other limitation[s]" and "standardfs] of per-
formance" within the meaning of §308(a). Even if this were not so,
however, the Administrator has broad discretion under §308(a) to
determine data and information-gathering requirements necessary to
"carry out the objective of [the] Act . . . ." Accordingly, there is
ample authority in §308 for the requirement that a discharger carry
out studies necessary to implement §316 (b) ,
The permittee does not appear to contest the reasonableness of
the studies, nor does it argue that they are not required to implement
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§316(b). Instead, the permittee's brief states that since §316(b)
is not mentioned in §402(a)(1), intake monitoring studies may not be
required by NPDES permit conditions. The authority to require such
studies derives directly not from 316(b), but from §308, as I have
previously indicated. Since §308 is_ listed in §402(a)(1), conditions
required to comply with that section may clearly be included in NPDES
permits, including reasonable intake study requirements.
ISSUE OF LAW NO. VI
Question Presented
Whether a condition relating to dredging by Inland at the request
and with the approval of the U.S. Army Corps of Engineers is a proper
permit condition.
CONCLUSION
EPA is required to include conditions specified by the Chief of
Engineers in NPDES permits.
DISCUSSION
This question is essentially the same as the question raised and
addressed in Decision of the General Counsel on Matters of Law No. 17,
June 16, 1975.
ISSUE OF LAW NO. VII
Question Presented
Whether, to the extent that permit discharge limitations are
based on Phase I BPCTCA Guidelines, those limitations must be
conditioned to account for the judicial modification of the guidelines,
specifically:
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i) Whether the effectiveness of that portion of a permit based on
guidelines promulgated pursuant to §§301 and 304 of the Act,
which are the subject of judicial review, must be stayed pending
such review.
ii) Whether where a portion of a permit is based on guidelines promul-
gated pursuant to §§301 and 304 of the Act, and the permittee is
party to a proceeding for judicial review of the guidelines, the
permit should provide that any modification of the guidel-ines be
incorporated into the permit and the permittee be given an
opportunity to request an adjudicatory hearing or a variance
concerning the application of the guidelines to the permit.
iii) Whether where a permit condition is stayed pending judicial
review of effluent guidelines or is revised to incorporate
guidelines [sic] or is revised to incorporate guidelines modifi-
cations into the permit, the final effluent limitations
incorporated into the permit should be consistent with the
amount of time remaining prior to January [sic] 1, 1977 to install
additional control equipment.
CONCLUSION
As to the first and second issues, EPA must issue permits based
upon effluent regulations under §§301 and 304, even though those
regulations are undergoing judicial review. Moreover, the Regional
Administrator is not required to include in the permit conditions
requiring modification of the permit if the guidelines are amended
340
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10
following judicial review. However, the Agency will consider requests
for such permit modifications in its discretion.
As to the third issue, procedures for the revision of NPDES permits
based upon court ordered modified effluent guidelines will be those
specified in 40 CFR Part 125. Public notice shall be provided for
each proposed permit revision. Any interested party may request an
adjudicatory hearing on the Regional Administrator's tentative
determination to grant or deny a request for permit revision.
If other permit requirements are based upon effluent limitations
which are revised pursuant to this policy, those other requirements
may have to be adjusted accordingly. For example, a revised, less
stringent effluent limitation may be achievable in a shorter period of
time than had been allowed in the original permit schedule of com-
pliance. If so, the schedule should be reduced in accordance with the
shortest reasonable period of time principle specified in the NPDES
regulations. Similarly, it may be appropriate in some cases to revise
monitoring requirements with respect to revised effluent limitations.
Whatever permit revisions the court ordered effluent limitations
modifications might require, the Environmental Protection Agency has
no authority under Section 402(a) of the Act to issue a permit which
would require the installation of control equipment necessary to
meet the requirements of "best practicable control technology,"
after July 1, 1977. There is, of course, no statutory bar to the
issuance of a permit requiring such installation after January 1,
1977, but before July 1, 1977.
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11
DISCUSSION
The first and second issues were decided in Decision of the
General Counsel on Matters of Law No. 3, March 6, 1975; and No. 10,
May 2, 1975. The third issue was also previously resolved, in
Decision No. 23, July 3, 1975.
ISSUE OF LAW NO. VIII
As raised in issues 8A, 13A, 19A, 19B, 28A, 28B, 30A, and 30B
relating to discharges from the blast furnace, 24" Bar Mill sedi-
mentation basin, blast furnace gas scrubber, hot and cold mill treat-
ment facility, BOF gas cooling and grit water, respectively, whether
the application of discharge limitations and monitoring requirements
internally to process discharges, rather than externally to outfalls,
is proper, particularly:
i) Whether such internal application violates Sections 301 and
304 of the Act.
CONCLUSION
Limitations upon internal process discharges are proper, if such
discharges would ultimately be discharged into waters of the United
States, and if such limitations are necessary to carry out the
principal regulatory provisions of the Act. These are determinations
involving the application of law to the facts, properly to be
determined on the basis of the record of an adjudicatory hearing.
DISCUSSION
Because the permit itself was not referred to me, this discussion
is necessarily hypothetical. It is, for example, not clear from the
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12
briefs to what extent compliance with applicable effluent regulations
under §§301 and 304 of the Act would require separate monitoring and
control of internal waste streams. Nor is it clear whether dilution
of pollutants by other streams could render determination of com-
pliance with limitations on, for example, cyanide discharges, difficult
to measure.
The prohibition of §301 of the Act against the "discharge of any
pollutant by any person" except in compliance with the Act's
regulatory provisions clearly applies only to the addition of
pollutants to waters of the United States from point sources. See
§§502(12), 502(14). Thus, the NPDES permit system extends only to
those wastes which are discharged in that manner. This does not,
however, resolve the question of how and where controls may be applied
to regulate such discharges.
Section 301 of the Act requires the achievement of certain
"effluent limitations". That term is defined in §502(11) to mean "any
restriction established by a State or the Administrator on quantities,
rates, and concentrations of chemical, physical, biological, and
other constituents which are discharged from point sources into
navigable waters, the waters of the contiguous zone, or the ocean,
including schedules of compliance." Nothing in this definition
restricts to the outfall pipe the point in the plant at which such
pollutants are monitored for compliance. While there may be problems
in some instances in determining that the pollutants in question
343
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13
are in fact "discharged from point sources", particularly if such
pollutants are treated after the monitoring point, controls may
properly be established at other points than the actual outfall pipe.
Section 402(a)(1) of the Act authorizes the Administrator to
issue discharge permits "upon condition that such discharge will meet
either all applicable requirements under sections 301, 302, 306, 307,
308, and 403 of this Act, or prior to the taking of necessary
implementing actions relating to all such requirements, such conditions
as the Administrator determines are necessary to carry out the
provisions of this Act." Pursuant to §402(a)(2), the Administrator
may prescribe "such . . . requirements as he deems appropriate" to
"assure compliance with the requirements" of §402(a)(1). Depending
upon the facts, such requirements may well involve controls applied
at points other than the ultimate point of discharge.
Accordingly, the ultimate question is a factual question: are
the permit requirements complained of here "appropriate" to "assure
compliance" with the regulatory provisions of the Act? Numerous
circumstances exist when such requirements are clearly appropriate.
For example, if a permit limited the quantity of cyanide allowed to be
discharged, it would be appropriate to measure the cyanide after
treatment, but before mixing with other streams, particularly where
such mixing might dilute the cyanide concentration to levels too low
to measure accurately, or where other compounds could interfere with
detection and measurement of cyanide levels. Other hypothetical
344
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14
examples could be given. However, the application of these principles
to the instant permit cannot be determined in the abstract, but must
be decided upon the record of an adjudicatory hearing.
Robert V. Zener
General Counsel
Dated:
4 1975
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, B.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF LAW PURSUANT TO
40 C.F.R. Section 125.36(m) No< 28
In the matter of National Pollutant Discharge Elimination System
permit for Itmann Coal Company, Consolidation Coal Company, Itman Mine
#3, Wyoming County, West Virginia (NPDES Permit No. WV 0025968), the
Presiding Officer has certified an issue of law to the Office of Gen-
eral Counsel for decision pursuant to 40 C.F.R. Section 125.36(m) (39
F.R. 27078, July 24, 1974). The parties and other interested persons
have had the opportunity to provide written briefs in support of their
respective positions.
QUESTION PRESENTED
"Does the Environmental Protection Agency have the power and auth-
ority to include in the final permit, terms and conditions relating to
non-point sources when said terms and conditions have been imposed by
the Corps of Engineers as necessary to prevent.the impairment of anchor-
age and navigation?"
CONCLUSION
The question certified as an issue of law does not appear, on the
record before me, to be actually an issue in the permit proceeding be-
cause the condition required by the Corps was not the condition included
in the permit and because it does not itself appear to require any con-
ditions relating to non-point sources of discharge. The question actually
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presented by this case is whether the NPDES permit may contain con-
ditions, relating to the Corps' concern for anchorage and navigation,
which go beyond the scope of the conditions requested by the Corps. In
my opinion the NPDES permit may do no more than incorporate the conditions
proposed by the Corps, since Section 402 (b) (6) of the Act is a grant of
authority to the Secretary of the Army to protect anchorage and naviga-
tion when an NPDES permit is proposed and does not confer any such re-
sponsibility or authority on EPA. Likewise, the NPDES regulation at
40 C.F.R. §125.22(b) provides that the conditions imposed in permits
to protect anchorage and navigation are those considered by the Corps
of Engineers, not EPA, to be necessary to protect anchorage and naviga-
tion. Accordingly, I conclude that the condition presently contained
in the permit is improper but that the condition initially requested by
the Corps must be included. The question referred would not actually
be raised unless the condition required by the Corps explicitly imposed
conditions relating to non-point sources.
DISCUSSION
The answer to this referral pursuant to §125.36(m) is particularly
dependent on the undisputed factual situation presented in the briefs
of the parties. The Corps of Engineers, after considering the proposed
issuance of the NPDES permit for the permittee, recommended that such
permit "must contain conditioning" as follows:
Should this discharge result in sufficient
deposition of solids material to create a
hazard to anchorage or navigation on any
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navigable water, such deposits will be re-
moved by the permittee without expenses to
the United States Government. Further, the
time and manner of such removal, as well as
the location and manner of its disposal,
must receive the prior written approval by
the District Engineer of the Corps of
Engineers.
The permit condition which appeared in response to this request
was as follows:
The permittee agrees to undertake erosion
control practices which utilize proper
sedimentation control measures in order
to minimize resultant sedmentation [sic]
in navigable waters which occur as a re-
sult of discharges from both point and
non-point sources connected with his over-
all operation.... The Regional Administra-
tor shall have the right to inspect the
sediment control measures being undertaken
by the permittee and direct, following con-
sultation with the District Engineer, any
additional measures which he deems appro-
priate.
The permittee further recognizes that these
sediment control measures may not result in
complete elimination of sedimentation which
may substantially affect navigation as a
result of his overall operation, and there-
fore agrees to reimburse the U. S. Army
Corps of Engineers for those expenses in-
curred in the removal of these materials
from the navigable waterway....
The permittee disputed the inclusion of the conditions, characterizing
the question raised by these terms as whether the 1972 act authorizes the
Administrator to include in an NPDES permit, terms and conditions relating
to non-point sources which have been made a condition to certification by
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the Corps. The question which the Presiding Officer has referred pursuant
to Section 125.36(m) is whether EPA has authority to include in the final
permit, conditions relating to non-point sources when said conditions have
been imposed by the Corps of Engineers as necessary to prevent impairment
of anchorage and navigation.
Although the responsibility of the General Counsel under 40 C.F.R.
125.36(m)(4) is to "provide the Regional Administrator, the Presiding
Officer, and each party with a written decision with respect to each
referred issue of law" (emphasis added), the General Counsel cannot ren-
der such decision without regard to the factual setting of the referred
issue. In order to provide an "interpretation of provisions of the Act"
and "interpretation of regulations promulgated pursuant to the Act,"
issues of law must be raised as actual disputes and not merely speculative
inquiries. In the instant proceeding the Corps' recommended condition
was that if "this discharge result[s] in sufficient deposition of solids
material to create a hazard to anchorage and navigation on any navigable
water, such deposits will be removed by the permittee without expenses
to the United States Government." This request seems clearly to relate
the condition to the point source discharge which was the subject of the
permit. The condition written into the permit by EPA expanded this con-
dition to include erosion controls on point and non-point sources. There-
fore, I find that the issue of law should be properly framed as follows:
Is EPA authorized to include conditions beyond those specified by the
Corps to prevent impairment of anchorage and navigation?
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In Decision No. 17 of the General Counsel, I have already determined
the question whether, as a matter of law, EPA is obligated to include in
NPDES permits those conditions that the Corps considers to be necessary
to insure that navigation and anchorage will not be imparied. As dis-
cussed in that Decision, Section 402(b)(6) of the Act provides that "no
permit will be issued if, in the judgment of the Secretary of the Army,
acting through the Chief of Engineers, after consultation with the
Secretary of the Department in which the Coast Guard is operating, an-
chorage and navigation of any of the navigable waters would be substan-
tially impaired thereby." This Agency's promulgated regulations con-
cerning permit conditions which will be included in permits issued by
EPA provide in part:
Permits shall contain such other conditions
as the District Engineer of the Corps of
Engineers considers to be necessary to in-
sure that navigation and anchorage will not
be substantially impaired. 40 C.F.R. §125.22(b)
The statutory language which grants to the Secretary of the Army the
right to prevent a permit from being issued also clearly includes the
right to take the step of imposing conditions on permits, so that events
will not occur which may justify the exercise of an absolute veto. Thus,
Section 402 contemplates, and the regulations of the Environmental Pro-
tection Agency require, that the permit contain any conditions furnished
to the Agency by the District Engineer which, in his opinion, are neces-
sary to insure that navigation and anchorage will not be substantially
impaired.
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The Corps' request in the present case, that a condition imposing
responsibility for removal of deposits by permittee if deposits of solid
material from this discharge created a hazard to navigation, must be in-
cluded in the NPDES permit. The requested condition does not purport
to require actions unrelated to the point source which is the subject
of the permit. However, the NPDES permit was proposed with conditions
relating to anchorage and navigation beyond the scope of the condition
which the Corps asked to be imposed. There is no claim by EPA in this
record that the disputed conditions are imposed independently of the
Corps' request for protective conditions.
I find no authority in the Act which allows EPA to expand upon or
modify the Corps' conditions. Obviously, for the sake of clarity or con-
sistency, the permit issuer may find it necessary to restate the phraseology
of the Corps' condition, but he is not authorized to modify the substan-
tive effect of the Corps' condition. Section 402(b)(6) and the NPDES
regulation interpretative of that section of the Act, 40 C.F.R. 125.22(b),
speak to the authority and responsibility of the Secretary of the Army,
acting through the Corps of Engineers, to protect anchorage and naviga-
tion. If "in the judgment of the Secretary of the Army...anchorage and
navigation of any of the navigable waters would be substantially impaired"
by the issuance of a permit, that permit "shall contain such...conditions
as the District Engineer of the Corps of Engineers considers to be
necessary...." No similar authority or responsibility is given to the
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Environmental Protection Agency by the Act or regulations to condition a
permit to prevent impairment of anchorage or navigation, irrespective
of whether these conditions are phrased in terms of point or non-point
sources.
In accordance with 40 C.F.R. 125.36(m)(4), this determination shall
be relied upon by the Regional Administrator in rendering the initial
decision on the permit issuance pursuant to 40 C.F.R. 125.36(1)(3). To
the extent the issue in this case is whether EPA must include the con-
ditions proposed by the Corps, as we have stated in Decision No. 17, the
validity of the NPDES regulation 40 C.F.R. 125.22(b) and the issue of
whether they afford due process before EPA, are outside the scope of the
legal referral procedure and are properly addressed to the Circuit Court
of Appeal. Similarly, any issue regarding the observance of due pro-
cess by the Secretary of the Army in establishing such conditions, is
not an issue for which EPA's administrative forum is to be used. The
permittee has adequate remedies against the Secretary of the Army pur-
suant to the Administrative Procedure Act.
Robert V- Zener/
General Counsel.,
AUG 11 1975
Dated:
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 CFR §125.36(m) No. 29
In the matter of National Pollutant Discharge Elimination System
permits for Peabody Coal Company, Universal Mine, Universal, Indiana,
IN-0002984, IN-0025305, the Presiding Officer has certified four issues
of law to the General Counsel for decision pursuant to 40 CFR §125.36(n)
(39 F.R. 27078, July 24, 1974). The parties, having had the opportunity
to provide written briefs in support of their respective positions,
present the following issues:
ISSUE OF LAW NO. I
Question Presented
"Does the Administrator, in issuing a federal NPDES permit under
Section 402(a) of the Act, have the authority to require the Permittee
to submit monitoring or other reports to the state water pollution
control agency, to allow entry of a representative of the state water
pollution control agency onto the Permittee's premises, or to impose
any other requirements of state law upon the Permittee as a condition
to such federal permit absent an appropriate state certification under
Section 401(d) which expressly requires such conditions?"
353
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2
Conclusion
The authority of the Administrator to require the Permittee to
submit monitoring reports or other reports to the state water pollution
control agency and to allow entry of a representative of the state water
pollution control agency onto the Permittee's premises is set forth in
40 CFR §125.22(a)(3), promulgated pursuant to the provisions of the Federal
Water Pollution Control Act, as amended (the "Act"). We have previously
stated that the purpose of the legal referral procedure is to provide
guidance to Presiding Officers at hearings and Regional Administrators
in the permit process concerning points of regulatory or statutory
construction on which the Agency's position is not clear and which require
prompt resolution before a decision can be rendered in the NPDES permit
issuance proceedings. The General Counsel is without authority to strike
down duly promulgated regulations of the Administrator. To the extent that
the Permittee here claims that 40 CFR §125.22(a)(3) is beyond the Agency's
authority under law, this question must be addressed in the appropriate
United States Court of Appeals on review of the Administrator's action
in issuing the permits.
With regard to the question of the Administrator's authority to impose
any other requirements of state law upon the Permittee as a condition to
such federal permit absent an appropriate state certification under section
401(d) this issue has, we feel, been adequately addressed in Decisions of
the General Counsel, Nos. 13 (May 19, 1975), 14 (May 21, 1975),
17 (June 16, 1975) and 25 (July 22, 1975).
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3
Without knowledge of what conditions have been imposed in the
permit required to implement provisions of State law, I am unable to
expand upon the discussions contained in the above cited Decisions.
In the absence of a certification by a State setting forth those
requirements necessary to assure compliance with appropriate requirements
of State law, EPA is obligated, pursuant to Sections 402 and 301 of
the Act, to assure compliance with State law or regulations under the
authority preserved to the States by Section 510 of the Act.
ISSUE OF LAW NO. II
Question Presented
"Prior to proceeding with the presentation of its case in an adjudicatory
hearing is the Permittee entitled, as a matter of law, to require the
Administrator to produce, for the Permittee's use in preparing its presenta-
tion, the entire administrative record which resulted in the issuance of
the permit which is the subject of the adjudicatory hearing?"
Conclusion
It is unclear from this question and the brief filed by the Permittee
exactly what is meant by the "entire administrative record which resulted in
the issuance of the permit." In any event, provisions of relevant law
provide the Permittee with the opportunity to obtain essentially all
information in the possession of the Agency except that which would be
unavailable under court process. (See 5 U.S.C. §551 et seq.; 40 CFR
§125.35). To the extent that this question involves an allegation of lack
355
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4
of due process under the United States Constitution, this question is
beyond the scope of this proceeding and must be addressed in the
appropriate United States Court of Appeals on review of the Administrator's
action in issuing the permit. In addition, since the Permittee's argument
here appears to be made in abstract terms without any showing or allegation
that it has been denied any information in the Agency's possession, it
thus appears that this question may merely be hypothetical and, as a
matter of policy, we will not answer in this proceeding hypothetical
questions.
ISSUE OF LAW NO. Ill
Question Presented
"Is the issuance of a Permit lawful in the absence of a finding
of fact on the record that the waters into which the permitted discharge
will occur are 'navigable waters' within the meaning of Section 502(12)
of the Federal Water Pollution Control Act Amendments of 1972?"
Conclusion
The applicable NPDES regulations provide that the Presiding Officer
shall "identify disputed issues for consideration at the hearing," 40 CFR
§125.36(h)(4)(iii), and that the "Regional Administrator shall include a
statement of findings and conclusions including the basis therefore.
All issues ... submitted by the parties in proposed findings and
conclusions ... shall be addressed in the initial decision of the Regional
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Administrator." 40 CFR §125.36(e)(2). Whenever there is a dispute
in a permit proceeding concerning the issue of "navigability", these
provisions must be complied with.
Discussion
This issue warrants little discussion. The answer is clear that
if the issue of jurisdiction (i.e. discharge to navigable waters) has
been raised by a party, the Regional Administrator must, pursuant to the
above section, make findings on that issue. The regulations do not
permit, as urged by the Regional Office, an inferred finding on a
disputed issue.
ISSUE OF LAW NO. IV
Question Presented
"Are the regulations governing adjudicatory hearings (40 CFR
§125.36) in excess of the authority conferred by the Act to the extent
that they authorize the participation, as parties in adjudicatory
hearings, persons other than the Permittee and the United States
Environmental Protection Agency?"
Conclusion
NPDES permits are issued pursuant to Section 402 of the Act, which
provides that "the Administrator may, after opportunity for public
hearing, issue a permit..." Further, section 101(e) of the Act provides
that "Public participation in the development, revision and enforcement
of any regulation, standard, effluent limitation, plan, or program
established... under this Act shall be provided for, encouraged, and
assisted by the Administrator..."
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6
These sections of the Act, and the associated legislative history
(see, e.g.. Leg. Hist, at pp. 108, 249, 255, 362, 432, 1430) establish
a Congressional mandate that the public be afforded an opportunity to
participate in the permitting process. The regulations promulgated
by this Agency have been designed to encourage public participation.
In addition, in many cases the public may have an interest which may
be affected by the Agency's action in the issuance of a discharge
permit and, thus, would have a clear right to become a party in the
Agency's proceedings.
The permittee has made no argument and cited no authority in
support of its position in its brief. Since this question also
appears to be hypothetical and seeks to challenge a promulgated
regulation of this Agency, no further discussion appears warranted.
Dated
Robert V. Zener/"J
SEP 4 1975 -y
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, B.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 C.F.R. §125.36(m)
No. 30
In the matter of National Pollutant Discharge Elimination System
permit for City of Ely, Nevada, Docket No. 141-24(w), the Presiding Officer
has certified an issue of law to the General Counsel for decision pursuant
to 40 C.F.R. §125.36(m) (39 F.R. 27078, July 24, 1974). The parties,
having had the opportunity to provide written briefs in support of their
respective positions, present the following-issues:
ISSUE OF LAW NO. I
Question Presented
Whether the discharge from the City of Ely, Nevada sewage treatment
plant into Murry Creek constitutes a discharge into "navigable waters"
as that term is defined in §502(7) of the Federal Water Pollution Control
Act.
Answer
Based upon the facts presented in the stipulation agreed to by EPA's
Regional Office, Region IX, and the City of Ely, I/ the discharge in
question is not a discharge into "navigable waters."
Discussion
The term "navigable waters" is defined in Section 502(7) of the
Federal Water Pollution Control Act as "waters of the United States,
!_/ A copy of the stipulation is attached as an appendix to this Decision.
359
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2
including the territorial seas." That term was explained in an earlier
opinion of this office as meaning "that pollution of waters covered by
the bill must be capable of affecting interstate commerce". EPA,
A Collection of Legal Opinions, Vol. I at 295 (1975). 2j This basic test
was elaborated somewhat in 40 C.F.R. §125.l(o):
(o) The term "navigable waters" includes:
(1) All navigable waters of the United States;
(2) Tributaries of navigable waters of the
United States;
(3) Interstate waters;
(4) Intrastate lakes, rivers, and streams which
are utilized by interstate travelers for recre-
ational or other purposes;
(5) Intrastate lakes, rivers, and streams from
which fish or shellfish are taken and sold in
interstate commerce; and
2] See Leslie Salt v. Froehlke, 7 ERG 1311, 1314 (N.D. Cal. 1974):
We conclude that the Congress, enacting
the FWPCA, was exercising its powers under the
commerce clause to combat pollution of the
nation's waters; that water pollution unques-
tionably affects interstate commerce and that,
therefore, it was a proper exercise of the com-
merce power to require permits for dredging or
filling which are potential causes of pollu-
tion of waters of the United States ....
Accord, United States v. Holland. 6 ERG 1388, 1392-93 (M.D. Fla. 1975);
of course, the statute does not require proof that "a particular discharge
or stream has a discernable [sic] interstate effect." United States v.
Ashland Oil, 6 ERG 1991 (W.D. Ky. 1973) aff'd, 504 F. 2d 1317, 7 ERG 1114
(6th Cir. 1974). The possibility of such an effect is sufficient.
360
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(6) Intrastate lakes, rivers, and streams
which are utilized for industrial purposes
by interstate commerce.
This definition is inclusive rather than exclusive. Accordingly, there may
be "waters of the United States" which are not specifically included within
its scope. However, the definition provides a useful starting point.
The relevant facts are as follows: the City of Ely operates a
sewage treatment plant on the Georgetown Ranch, north of Ely, Nevada. The
plant discharges into Murry Creek, which is directed into irrigation ditches
immediately downstream from the discharge plant. Under normal conditions,
no water from the irrigation ditches leaves the Georgetown Ranch, and is
unlikely to do so even during snowmelt or heavy rainfall. There is nothing
in the stipulation to indicate that even were any water to flow off of
the Georgetown Ranch property during such an event it would thereafter
enter another body of water. Occasionally, part of Georgetown Ranch is
leased to farmers for cattle grazing, and cattle from Utah have grazed
on the ranch and subsequently been returned to Utah.
None of the tests in 40 C.F.R. §125.l(o) appear to be met by this
factual situation. The facts indicate that Murry Creek is not navigable
in fact, nor is it a tributary of any waters, navigable or otherwise. It
crosses no State lines. The Stipulation does not indicate that fish or
shellfish are present in Murry Creek or if so, that they are taken
from the Creek and sold in interstate commerce. The waters
361
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4
downstream of the discharge point are not used for any industrial purpose. £/
Finally, I do not think that cattle from Utah are the sort of "interstate
travelers" the regulation drafters had in mind, even were they (the cattle)
to refresh themselves regularly with draughts of City of Ely sewage
effluent.
Apart from the regulation, it could be argued that the pasturage of
interstate cattle could affect commerce. While this possibility exists,
the potential effect is remote indeed. More importantly, this argument
ignores the character of the irrigation network as a land disposal
system. All the effluent from the plant is contained entirely on the
Georgetown Ranch, which appears to be owned by the City of Ely._L' If
_3/ A number of the facts in the stipulation relate to the character and
uses of Murry Creek upstream from the discharge point. These facts are
irrelevant to the legal determination because, except in stagnant water
(which Murry Creek is not), discharges of pollutants do not affect
commerce upstream from the discharge point. Thus our decision here is
confined to the discharge in question and the portion of Murry Creek
downstream of that discharge. We express no opinion as to the legal
status of Murry Creek from its origin to its entry onto the Georgetown
Ranch property.
4Y The fact that ownership of land surrounding a body of water is
consolidated in one legal entity is not in itself dispositive of the
issue of whether that water constitutes "waters of the United States"
within the meaning of Section 502(7). What is significant here is that
the water is contained on the property (i.e., there is no discharge
from the water on the Georgetown Ranch to another stream or lake) and
the absence of any of the uses of the water described in 40 C.F.R.
§125.1(o)(4), (5) or (6).
362
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5
the Utah cattle were sufficient to turn this irrigation/land
disposal scheme into navigable waters, then by analogy, if a farmer
allowed fishermen from another State to fish his small farm pond, the
pond would become "navigable waters." Although EPA should give the
term "navigable waters" its "broadest possible constitutional
interpretation",^/ neither law nor reason supports extension of that
term to cover these facts.
Dated: SEP 18 1975
pi o
' •
I \jr
General Counsel' f ,
5J Conference Kept, on S.2770, Kept. No. 92-1236, 92d Cong., 2d Sess,
at 144 (1972).
363
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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION IX
In the Matter of )
)
CITY OF ELY, NEVADA )
) Docket No. NV0020036
under Section 402 (a) , )
Federal Water Pollution Control )
Act Amendments of 1972, )
33 U.S.C. Sec. 1342 (a) ; )
40 CFR 125.36 (m) )
STIPULATION
IT IS HEREBY STIPULATED by and between the UNITED STATES ENVIRON-
MENTAL PROTECTION AGENCY, REGION IX, and the CITY OF ELY, White
Pine County, State of Nevada, acting by and through the undersigned,
as fo11ows:
1. The Environmental Protection Agency, Region IX, issued
National Pollutant Discharge Elimination System (NPDES) Permit
No. NV0020036 to the City of Ely, Nevada, on November 14, 1974,
to become effective on December 14, 1974, and to expire on May
1, 1977, authorizing the City of Ely to discharge to Murry Creek
from the City of Ely Sewage Treatment Plant, said plant being located
north of the City on the City-owned Georgetown Ranch.
2. The City of Ely requested an adjudicatory hearing on NPDES
Permit No. NV0020036 on November 24, 1974, as amended on December
17, 1974, setting forth as the only reason for the request that
Murry Creek was not a water of the United States in that it was
not navigable in fact or in law.
3. This request satisfying the requirements of 40 CFR 125.35(b),
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EPA, Region IX, granted the request of the City of Ely on January
6, 1975, stating that it was not clear whether the issue presented
was one of fact or law, and that in the event that the issue was
determined to be a question of law, said issue would be certified
for decision to General Counsel, pursuant to 40 CFR 125.36(m).
4. Therefore, the Environmental Protection Agency and the
City of Ely, Nevada, hereby agree to the following set of facts
concerning Murry Creek, and seek a decision of General Counsel
as to whether Murry Creek is navigable within the meaning of the
Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C.
Sec. 1321 et seq., and regulations promulgated thereunder, and
therefore that the City of Ely, Nevada, is required to obtain,
and abide by, an NPDES permit.
5. MURRY CREEK
a. The source of waters of Murry Creek is from springs
situated and being on land owned by the City of Ely. These springs
are situated at the south end of the City limits. The flow from
the springs approximates four (4) second feet. The waters flow
north through the City, described infra, thence outside city limits,
to the Georgetown Ranch.
b. These springs are the source of the City's water supply,
the waters therefrom being conducted by pipeline through a chlorination
plant, from there a part of the waters, via a pipeline, go to storage
tanks located on the hill just opposite the County Courthouse near
the County Park, a distance of approximately one-half (1/2) mile.
(2)
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Of the waters not piped to the storage tanks, part of the spring
water flows through the City of Ely via Murry Creek in its natural
channel, and is picked up in underground pipelines extending to.
the County Park, where these overflow waters join the overflow
waters from storage tanks, and then course on through underground
drain culverts (described in d. below) and the natural channel
to the Georgetown Ranch.
c. The remaining part of the water is diverted by a pipeline
installed by Kennecott Copper Corporation 45 years ago, which
pipeline supplies water, thus diverted, to the Ruth-McGill Water
Company for the needs of its domestic and commercial customers
at Ruth, Nevada, which domestic and commercial customers' needs
have the first priority to such waters as are diverted through
the pipeline, pursuant to Compliance Order and Certificate of Public
Convenience and Necessity issued by the Public Service Commission
of the State of Nevada, certifying the Ruth-McGill Water Company
as a public utility to furnish water to the needs of its domestic
and commercial customers. Any remainder of such water, if such
there be, then becomes available for the use of Kennecott Copper
Corporation's office and shop personnel. For reference a copy
of the Compliance Order and Certificate of Public Convenience and
Necessity are attached hereto and made a part hereof for all purposes.
Pr'ior to the issuance of the Compliance Order and Certificate
of Public Convenience and Necessity by the Public Service Commission
(3)
-------
of the State of Nevada, Kennecott Copper Corporation furnished,
through its pipeline, waters to its employees living at Ruth, Nevada,
for domestic and culinary purposes. Since the date of the issuance
of the Compliance Order and Certificate of Public Convenience and
Necessity, the furnishing of such water supply is incumbent upon
the Ruth-McGill Water Company. The transmission of this water for
domestic and commercial uses at Ruth, Nevada, is solely dependent
on any surplus waters being available over and above the needs of
the residents of the City of Ely.
d. The waters of Murry Creek join with (1) overflow from
the storage tanks, and (2) waters, if any, in Gleason Creek (described
infra) at Eighth Street in the City and enter an underground conduit,
approximately thirty (30) inches in diameter. These culverts traverse
approximately Fifty Percent (50%) of the length of Murry Creek channel,
which is approximately One and one-half (1 1/2) miles from the springs
to the Georgetown Ranch.
e. The other Fifty Percent (50%) of the length of Murry
Creek, which is not served by culverts, consists of the natural
channel, averaging approximately four (4) square feet in cross section,
and ending at the Georgetown Ranch.
f. Situated upon the Georgetown Ranch in its southwest
corner is the City of Ely Sewage Treatment Plant, said plant discharg-
ing into Murry Creek as the creek flows past the plant in a northerly
direction. Murry Creek is then diverted into a system of irrigation
ditches; the first diversion therefor being approximately One Hundred
Twenty-five feet (125') in a northerly direction from the outflow
(4)
367
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of the waters from the Plant and is thereafter diverted into irriga-
tion ditches at various intervals and thereafter through the central
portion of the ranch. No water from the irrigation canals leaves
the ranch property, nor is any water likely to leave the ranch property
in the event of a storm or snowmelt.
g. The lands where the springs arise and the waters flowing
therefrom are City-owned. The lands through which Murry Creek
flows are all subject to drainage easements, through which the
water has flowed from time immemorial.
h. A small portion of the Murry Creek Channel, referenced
above, conveys water from the springs in an open concrete ditch
for approximately One Hundred (100) feet adjacent to the Plaza
Hotel and in front of the White Pine County High School, from which
it enters the underground storm drain culvert. These openings
are fenced off, and are not used for any recreational purposes.
i .,, Except in the summer season when the flow rate is
reduced Fifty Percent (50%), the flow'rate in the culvert and the^
channel as it flows out to the Ranch is approximately two (2) second
feet of water.
j. The City of Ely leases part of the Georgetown Ranch
to a local resident, who in turn leases the land, during the summer
growing season, to farmers to pasture their cattle upon the forage
which grows on the Ranch. On two (2) occasions cattle from the
State of Utah have been pastured upon the Ranch during the summer
growing season, and were returned by the owner of the cattle to
the State of Utah after the summer growing season ended.
(5)
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During the five (5) year period that these lands have been
under lease from the City to the individual person, intermittent
pasturage has been rented, i.e., actually during only two (2).
years out of the five (5), to a cattleman in the State of Utah,
who has transported his cattle to the Georgetown Ranch and returned
them by his own transportation to the State of Utah at the end
of the summer growing season.
6. GLEASON CREEK
a. Gleason Creek is located west of the City of Ely,
at a distance of approximately Eighteen (18) miles.
b. Gleason Creek is a small bubbling spring, the waters
flowing intermittently, and even then are dependent upon the amount
of precipitation.
c. Gleason waters, in and of themselves, at no time reach
anywhere near the City of Ely. The Gleason Creek on occasion does
drain, from the surrounding areas, waters received from early spring
thaws or thunderstorms, and on occasion, in the past, has caused
flood situations to the City of Ely.
d. There is a U.S.G.S. measuring station west, but within,
the City limits, which was installed for the purpose of measuring
any flood waters from Gleason Creek. Only in the event of heavy
spring snowmelt or summer thunderstorm do Gleason Creek waters
flow into the City and merge with Murry Creek at Eighth (8th) Street
(6)
369
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where the creek enters the underground culverts.
UNITED STAT
PROTECT
By
ENVIRONMENTAL
IX
CITY OF ELY, NEVADA
Date:
Matthew S. Waiker
Chief, Proceedings Branch
Enforcement Division
TOO California Street
San Francisco, California 94111
Date:
"- 2- f - 7
Attorney-City of Ely
777 Aultman Street
Ely, Nevada 89301
(7 and last)
370
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF LAW PURSUANT TO
40 C.F.R. Section 125.36(m)
No. 31
In the matter of National Pollutant Discharge Elimination System
Permits Numbered NV0020095, Sierra Pacific Power Company, Frank A.
Tracy Generating Station, and NV0020109, Sierra Pacific Power Company,
Fort Churchill Generating Station, the Regional Administrator has
certified one issue of law to the General Counsel for decision pursuant
to 40 C.F.R. §125.36(m) (39 F.R. 27078, July 24, 1975). The parties
having had an opportunity to provide written briefs in support of their
respective positions, present the following issues:
Question Presented
"Whether EPA has legal authority to modify a permit that it
has issued so as to include in the permit a provision for a
"zone mixing', when the state in which the permittee is located
has adopted a regulation that permits a state to grant 'zones
of mixing' but said regulation has not been submitted to nor
approved by EPA pursuant to 33 U.S.C. §1313 as part of the
approved water quality standards for such state."
Conclusion
No.
Discussion
A mixing zone is a provision in water quality standards that
recognizes that the standards may not be met in an area of water in the
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2
immediate vicinity of a discharge point and which, in effect, sanctions
this deviation by specifying alternative standards for the area of the
zone or specifying that standards must be met at the edge of the zone.
In its 1968 Report on "Water Quality Criteria," the National Technical
Advisory Committee recognized and specifically authorized the inclusion
of mixing zones in standards designed to protect both freshwater and
marine fish populations. At 30. The EPA adopted and followed the
recommendations of the NTAC in implementing the water quality standards
program under the Water Quality Act of 1965. In extending and expanding
the water quality standards procedure initiated in the 1965 Act, and
continuing in effect the standards established pursuant to that Act,
the Congress gave no indication of its intent to preclude use of this
mechanism in appropriate situations under the Federal Water Pollution
Control Act Amendments of 1972 (the Act). The EPA, in fact, in
developing its "Guidelines for Developing or Revising Water Quality
Standards" under the 1972 Act recognized the continued viability of
the use of mixing zones. At 25.
Moreover, the Congress specifically recognized the availabity of
the mixing zone concept as a mechansism for dealing with thermal dis-
charges pursuant to section 316(a) of the Act. During the House
debate on the Conference Report, Representative Wright, a member of
the Conference Committee, stated:
Section 316(a) in effect recognizes the temporary
localized effects a thermal component may have as well
as the potential beneficial effects. It encourages the
372
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consideration of alternative methods of control, including
mixing zones, so long as the controls assure the protection
and propagation of a balanced indigenous population of shell-
fish, fish and wildlife." (A Legislative History of the
Water Pollution Control Act Amendments of 1972, at 264 (1973)).
Representative Johnson, another conferee, remarked:
"The Administrator, or if appropriate the State,
shall consider all alternatives for dissipating heat,
including once-through cooling and mixing zones, so
long as the protection of fish can be assured."
(Id., at 267).
It is thus my opinion that mixing zones are consistent with the
requirements of the Act both in the context of water quality standards
approved or promulgated pursuant to section 303 of the Act, and as
established in connection with proceedings under section 316(a) of the
Act. In both of these contexts, however, the mixing zone is recog-
nized as an exception to an otherwise applicable effluent limitation,
which exception is to be established through defined procedures.
Although the mixing zone requested by Permittee has been adopted by
the State of Nevada, it has not been submitted to the EPA for review
and approval as to its consistency with the requirements of the Act.
Nor would the Nevada mixing zone provision, since it establishes an
exception to the stream standards for the affected streams, be a
more restrictive state standard required to be applied pursuant to
sections 510 and 301(b)(l)(C) of the Act. Nor, apparently, has a
section 316(a) proceeding been completed for the Tracy Generating
Station or requested for the Fort Churchill Generating Station. It
is therefore my opinion that the Regional Administrator is required,
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4
pursuant to section 301(b)(l)(C) of the Act, to establish effluent
limitations to meet the more stringent state water quality standards;
permit modification to take account of unapproved mixing zone
provisions is not authorized.
Dated:
Robert V. Zener
General Counsel
OCT 14 1975
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF LAW
PURSUANT TO 40 C.F.R. SECTION 125.36(m)
NO. 32
In the matter of National Pollutant Discharge Elimination System
Permit for Youngstown Sheet & Tube Co., IN-0000205, Indiana Harbor Works,
the Presiding Officer has certified three issues of law to the Office of
General Counsel for decision pursuant to 40 C.F.R. Section 125.36(m) (39
F.R. 27078, July 24, 1974). The parties having had an opportunity to
provide written briefs in support of their respective positions, present
the following issues:
ISSUE OF LAW NO. I
Question Presented
Pending a determination in the United States Circuit Courts of
Appeals of the validity of the "Iron and Steel Effluent Guidelines,"
is the imposition of interim and final effluent limitations based on
said guidelines arbitrary, capricious and a deprivation of the Permittee's
right to due process of law and contrary to the FWPCA amendments of 1972?
i. Must the final effluent limitations and compliance
schedule in the permit, as a matter of law, be no less stringent
than the limitations contained in the "Effluent Guidelines and
Standards — Iron and Steel Manufacturing Point Source Category,"
40 C.F.R. Part 420, published at 39 Federal Register 126 (June 28, 1974),
375
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2
when said "Effluent Guidelines and Standards" are currently
the subject of petitions for review by Permittee and others
in the United States Court of Appeals pending a determination
of the validity of said "Effluent Guidelines and Standards?"
ii. Assuming the answer to Issue (i) is in the negative, is
it proper for the Administrator to issue final effluent limitations
and monitoring requirements in the permit upon said "Effluent
Guidelines and Standards" when said "Effluent Guidelines and
Standards" are currently the subject of petitions for review
by Permittee and others in the U.S. Court of Appeals pending
a determination of the validity of said "Effluent Guidelines
and Standards?"
Conclusion
EPA may issue individual permits based upon regulations which have
been promulgated in final form by the Environmental Protection Agency
pursuant to sections 301 and 304 of the Act. This is so even where
appellate judicial review is pending and where the potential permittee
is a party to such appeal. Limitations based on such final regulations
must reflect the application of limitations no less stringent than those
established in such guidelines.
Discussion
Permittee's first argument that the effluent guidelines are guidance
only, allowing the establishment of less stringent limitations, amounts
to a challenge to the technical and legal sufficiency of the effluent
limitations guideline itself, and is basically the same as the argument
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3
made by Permittee and the other petitioners in the United States Court of
Appeals for the Third Circuit. As has been discussed in General Counsel
Opinions No. 3 (March 6, 1975) and 23 (July 3, 1975), it is my conclusion
that such challenges to the technical and legal sufficiency of effluent
limitations guidelines are to be brought exclusively in a judicial forum
and may not be raised in the NPDES administrative proceedings. Further, as
discussed in General Counsel Opinion No. 23, Permittee's citation of the
Eighth Circuit Court of Appeals decision in CPC International, Inc., v. Train
(8th Cir. May 5, 1975, . F.2d , 7 ERC 1887) is inapposite. The court
in CPC International did not rule on either the merits of permittee's sub-
stantive arguments or the issue of an administrative, versus a judicial,
forum for review of the effluent limitations guidelines. The only effect
of the holding in CPC International, if it were to be followed by the other
Circuit Courts which have the question before them, is to alter the judicial
forum from appellate to district courts.
Permittee's second argument, that permits based on the effluent
limitations guidelines should not be developed pending judicial review of
the guidelines, has also been reviewed in earlier opinions from this
office. I ruled in Opinion No. 23, for example, that "that portion of
a permit based on effluent limitations/guidelines promulgated pursuant to
Sections 301 and 304, which is the subject of a pending proceeding for
judicial review, need not be stayed by EPA pending the outcome of the
judicial review." At 4. Permittee's attempt to bolster its argument by
resort to the EPA's representations in the Third Circuit Court of Appeals
distorts both the content of the EPA argument and the law applicable to
judicial consideration of stay request. Contrary to Permittee's assertion,
377
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4
the Agency opposed a judicial stay of the effluent guidelines precisely to
ensure that they be taken into consideration in the permitting process. AISI,
et al.. v. EPA, C.A. 3, Nos. 74-1640, 74-1642, 74-1692, 74-2006, Respondent's
Memorandum in Opposition to Motion for a Stay of Effluent Guidelines and
Standards, June 16, 1975, at 5-6. EPA argued that since the effect of the
national regulations as to a particular plant is stayed pending completion of
the administrative process within the Agency (40 CFR §125.35(d)(2), 125.36(n)(4),
(n)(6) and (n)(7)) the showing of imminent and irreparable harm necessary to
justify a stay had not been made. The Court has thus far declined to grant a
stay of the subject regulations. The regulations were promulgated pursuant to
Sections 301 and 304 of the Act and thus continue as effective rules of the
Agency. Accordingly, the Agency may develop its point source discharge permits
based on such regulations so long as they remain in effect.
ISSUE OF LAW NO. II
Question Presented
Should Part I.E. be further modified to contain provisions which provide
that discharges from the plant which are caused by or result from force majeure
or other causes beyond the Permittee's control should not constitute violations
of the terms and conditions of the permit. More specifically: (a) must a
force maj eure clause such as that requested by Permittee be included in an
NPDES permit? (b) may a force maj eure clause such as that requested by
Permittee be included in an NPDES permit? and (c) must the Permittee be
allowed to introduce evidence at an NPDES adjudicatory hearing to support its
request for a force majeure clause?
378
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5
Conclusion
The Regional Administrator may, in his discretion, include a force
majeure clause in a permit, but is not required to do so. The Permittee
must be allowed to present evidence at an adjudicatory hearing to support
its request for a force majeure clause.
Discussion
Adoption of permit conditions relating to discharges resulting from
factors beyond the Permittee's control (such as equipment malfunction, acts
of God, and accident) has been addressed in General Counsel Opinions No. 1
(September 5, 1974), 8 (April 14, 1975), and 15 (May 30, 1975). In each
of these opinions, I indicated that EPA has the statutory authority, under
the Federal Water Pollution Control Act, as amended, to issue a permit
containing provisions for such discharges, but that the exercise of this
authority is a matter within the discretion of the Regional Administrator.
I also indicated in each of those opinions, that determinations as to
inclusion of such provisions in a particular permit involve issues of fact
and policy that should be resolved only after opportunity for public hearing.
No nationally applicable policy regarding inclusion of force majeure
clauses has been developed. In the absence of such a policy, it is my view
that they should be reviewed within the factual context of particular permit
proceedings. While inclusion of such a clause is a matter of discretion, the
exercise of this discretion must be within the bounds of administrative process
applied to each case, rather than an across-the-board rulemaking type of
determination with no public process. That is, EPA Regions (not having been
delegated rulemaking authority in this area) may not simply adopt a policy
against the inclusion of force majeure clauses and then exclude all consideration
of arguments and evidence as to such a provision from all permit proceedings.
379
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6
Opportunity for public hearing on the question of inclusion of such a
provision must necessarily involve the right of the Permittee to present
evidence in support of its request.
ISSUE OF LAW NO. Ill
Question Presented
Should Part III. B of the Permit "Intake Structures" be deleted from
the Permit, assuming as Permittee claims, that the present intakes of its
Indiana Harbor Works already meet the requirements of best cooling water
technology available, and that, therefore, the provisions of Section 316(b)
of the FWPCA do not properly apply to the subject facility?
Conclusion
No.
Discussion
Section 316(b) of the FWPCA provides "Any standard established pursuant
to section 301 or section 306 of the Act and applicable to a point source
shall require that the location, design, construction, and capacity of
cooling water intake structures reflect the best technology available for
minimizing adverse environmental impact."
Permittee initially argues, though the argument is not comprehended
within the scope of the issue of law referred, that the requirements of
section 316(b) apply only to steam electric powerplants. In support of
this contention, it relies on one statement made during the House debate
on the Conference Report which does refer to steam electric generating
plants as regulated by section 316(b). A Legislative History of the
Water Pollution Control Act Amendments of 1972. Remarks of Representative
Clausen. At 264. (1973).)
380
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7
I do not find the argument persuasive. There can be no doubt that
Congress recognized that steam electric powerplants are the largest users
of industrial cooling waters and, hence, present a substantial environmental
threat through withdrawal of cooling water, as well as from the discharge
of heated water (addressed in section 316(a) of the Act). But the statement
referred to does not purport to describe in comprehensive terms the
applicability of section 316(a) or to confine it exclusively to steam
electric powerplants.
Second, even if it could be so construed, legislative history cannot
take precedence over clear statutory langaage to the contrary. And in
this instance the language of the statute is clear. Section 316(b) refers
to "any standard established pursuant to section 301 or section 306. ..."
Had Congress intended for the requirements of section 316 (b) to apply only
to steam electric powerplants, it certainly would not have used such encom-
passing language. Hence, I conclude that section 316 (b) is applicable to all
industrial plants, including steel mills, for which standards have been
established pursuant to sections 301 and 306.
Permittee next argues that the permit condition (which apparently
requires it to undertake studies designed to determine the effect of its
intake structure on the aquatic environment) is inappropriate because its
structure already reflects the best technology available for minimizing
adverse environmental impact. I cannot agree.
Section 402(a)(2) of the Act requires the Administrator to prescribe
conditions in all permits to assure compliance with each of several
enumerated sections of the Act (including sections 301 and 306), and to
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impose conditions for "data and information collection, reporting, and such
other requirements as he deems appropriate." Section 402(b)(2)(A) (made
applicable to permits issued by the Administrator by section 402(a)(3))
requires that permits insure compliance with section 308 of the Act.
Section 308, in turn, provides in pertinent part, that "Whenever required
to carry out the objective of this Act. . . (A) the Administrator shall
require the owner or operator of any point source to. . . (ii) make such
reports, (iii) install, use, and maintain such monitoring equipment or
methods (including where appropriate, biological monitoring methods),
. . . and (v) provide such other information as he may reasonably require."
These provisions afford ample authority for the inclusion of study
and monitoring requirements directed to the effects of the Permittee's
intake structure. Of course, the scope and nature of these conditions
are appropriate subjects for an adjudicatory hearing. The permittee may
introduce evidence as to the historical and present effects of its cooling
water system and such evidence would be relevant to the appropriateness
of elements of the monitoring program required by the condition in question.
However, even were the Permittee to demonstrate that the biological effects
had been minimal, this would not, as a matter of law, require the deletion
of all requirements as to future effects. First, there may be uncertainty
as to the adequacy or scientific rigor of previous monitoring. And, second,
a requirement of additional monitoring would be appropriate to confirm the
continued compliance of the structure with section 316(b).
Robert V. Zenerf
OCT 1 4 1975 General Counsel
Dated:
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DECISION OF THE GENERAL COUNSEL ON MATTERS OF
LAW PURSUANT TO 40 C.F.R. §125.36(m)
NO. 33
In the matter of the National Pollutant Discharge Elimination System
Permit for Blue Plains Sewage Treatment Plant, Permit No. DC0021199,
Washington, D. C., the presiding officer has certified seven issues of law
to the General Counsel for decision pursuant to 40 C.F.R. 125.36(m) (39
F.R. 27078, July 24, 1974). The parties, having had the opportunity to
provide written briefs in support of their respective positions, present
the following issues:
ISSUE OF LAW NO. 1
QUESTION PRESENTED
"May the permit legally contain immediately applicable provisions gov-
erning the disposition of the sludge generated by the subject facility? A.
May the permit legally prohibit disposal of sludge by incineration? B. May
the permit legally require that sludge disposal and waste water disposal be
carried out on land?"
CONCLUSION
Pursuant to §402(a)(2) of the Federal Water Pollution Control Act, as
amended (the "Act"), EPA is authorized to include in NPDES permits those con-
ditions reasonably determined by the Regional Administrator to be necessary
to insure compliance with §§301, 302, 306, 307, 308 and 403 of the Act. In
addition, under §402(a)(l), the Agency may, "prior to the taking of necessary
implementing actions relating to all such requirements", (i.e. §§301, 302,
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306, 307, 308 and 403), include "such conditions as the Administrator deter-
mines are necessary to carry out the provisions of this Act." Under either
of these provisions of §402, EPA may include permit conditions directly
relating to sludge disposal if such conditions are shown to be necessary
to the attainment of the effluent limitations that are included as con-
ditions of the permit.
Such sludge-related conditions which are necessary to the attainment
of effluent limitations imposed pursuant to §301(b)(1)(B) and 40 C.F.R.
§133 or other applicable effluent requirements may be applied immediately.
Moreover, any implementing steps shown necessary to meet the 1983 require-
ments of §301(b)(2)(B) or water quality related requirements of Section 302
may also be imposed in a presently issued permit, scheduled to expire be-
yond 1977.
DISCUSSION
Section 402(a)(1) of the Act authorizes the Agency to issue permits
upon the condition that applicable requirements of other sections are met.
Section 402(a)(2) requires that EPA impose conditions to assure compliance
with the "requirements" of paragraph (a)(1). 40 C.F.R. §125.22(b) provides
that permits are to include "such special conditions as are necessary to
assure compliance with applicable effluent limitations".
In my opinion, as a general rule, these provisions of the statute and
implementing regulations authorize a broad category of conditions including
conditions on the operating procedures of a facility which are necessary to
assure compliance with the enumerated statutory provisions. The Agency has
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3
an interest in assuring that violations of restrictions on effluent discharge
do not occur, an interest given statutory recognition by provisions of §402 (a)
authorizing imposition of conditions which assure compliance with those
limitations. So long as there is a rational connection between the con-
dition and the assured attainment of the effluent limitation, there is
statutory authority to impose it. See Decision of the General Counsel,
No. 19.
The present permit, I presume, principally focuses on the requirements
of §301(b)(1)(B), i.e., secondary treatment for municipal facilities. As
defined in 40 C.F.R. §133, secondary treatment requires the imposition of
limitations on BOD, suspended solids, pH and fecal coliform.l/ If effluent
limitations of a more stringent nature are required to attain applicable
water quality standards, they must also be included pursuant to §301(b)(1)(C).
Conditions must also be included in the permit to meet state certification
requirements pursuant to §401. Finally, any other conditions may be imposed
deemed necessary to comply fully with §§301, 302, 306, 307, 308 and 403 of
the Act. Therefore, if a basis for an effluent limitation under any of these
sections is found, any conditions necessary to implement such effluent limita-
tion may also be included.
It is my view that if certain sludge handling conditions could be shown
to influence the attainment of BOD, suspended solids or other permit limita-
tions, such provisions are proper conditions in the permit. For example, if
sludge disposal or handling at the facility adds to or, conversely, de-
creases pollutant loadings, conditions on that sludge disposal method may
be incorporated in a permit if necessary to assure that effluent limita-
l/ Proposed amendments to 40 C.F.R. 133 would modify the pH limitation and
eliminate the coliform limitation. See 40 Fed. Reg. 34522, August 15, 1975.
385
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4
tions contained in the permit are met. However, I am doubtful that a factual
nexus can be found between the levels of pollutant discharge at the Blue
Plains facility and a requirement that sludge must be disposed of either by
incineration or by land disposal or that waste water must be disposed on
land. What is clear is that there is no independent basis in §402 or else-
where in the FWPCA which authorizes the Regional Administrator to prohibit
the disposal of sludge by incineration. Likewise, there is no independent
authority which authorizes the Regional Administrator to include a con-
dition that sludge disposal and waste water disposal must be directly car-
ried out on land. A sludge-related condition specifying that disposal will
not be permitted at the Blue Plains facility because of resulting contribu-
tions to the level of BOD or suspended solids discharged might be permissible,
but a condition specifying where outside the confines of the Blue Plains
facility that sludge disposal is to take place is not authorized.2Y
There are other statutory grounds upon which sludge conditions may become
issues in permit proceedings, although these grounds have not been raised in
the referred question. For example, a state may attempt to require sludge
disposal conditions for section 401 certification or such conditions may be
proposed for consistency with a section 208 plan or for meeting requirements
imposed pursuant to section 402(b)(6) by the Corps of Engineers. This opinion
is not intended to resolve whether sludge conditions under these provisions wouli
be appropriate.
2j The question certified concerns the basis of authority for requiring land
disposal of sludge. There is no indication that permittee has requested or
may be subject to a Section 405 permit for present or planned sewage sludge
activities which "would result in any pollutant from such sewage sludge
entering navigable waters...." Section 405(a).
386
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5
In the question certified, emphasis is placed on the word "immediately".
I assume that the issue raised is whether conditions relating to disposal
of sludge may be imposed in the permit which anticipate requirements of the
Act which have not, as yet, taken effect.
I have previously concluded, in General Counsel Opinion, No. 2, that
conditions may be imposed in a permit expiring beyond 1977 which are framed
to insure compliance with §301(b)(2)(A). The equivalent 1983 level for
municipal facilities is the requirement of §301(b)(2)(B) that there shall
be achieved "not later than July 1, 1983, compliance by all publicly owned
treatment works with the requirements set forth in Section 201(g)(2)(A) of
this Act." Therefore, I conclude that conditions may be included in a
presently issued permit with an extended expiration date (i.e., post July 1,
1977) which are necessary to comply with the §301(b)(2)(B) "best prac-
ticable waste treatment technology" requirements.
The starting point for assessing conditions necessary to implement
§301(b)(2)(B) is the formulation of "best practicable waste treatment tech-
nology" (BPWTT). As presently proposed the requirements of BPWTT are as
follows:
Publicly-owned treatment works employing treatment
and discharge into navigable waters shall, as a
minimum, achieve the degree of treatment attainable
by the application of secondary treatment as de-
fined in 40 C.F.R. 133 (Appendix C). Requirements
for additional treatment, or alternative manage-
ment techniques, will depend en several factors,
including availability of cost-effective technology,
cost and the specific characteristics of the affected
receiving water body. ...Publicly-owned treatment
works emp1 ^'Ting lar.,1 application techniques and
land utilization practices which result in a dis-
charge to navigable waters shall meet the criteria
for treatment and discharge.... "Alternative Waste
Management Techniques for Best Practicable Waste
Treatment", Proposed for Public Comment, U.S. EPA,
March 1974.
387
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The requirements of BPWTT apply to applicants for construction grant
funds authorized by §201. Applicants for grants for municipal systems must
have evaluated alternative waste treatment management techniques and
selected the technique which will provide for the application of best prac-
ticable waste treatment technology. Alternatives must be considered in
three broad categories: treatment and discharge into navigable waters;
land application; and utilization practices and reuse of treated waste water.
Thus, the choice of a particular disposition technique is dependent prin-
cipally on grant fund authorization under §201 of the Act. Once all the
alternatives have been explored and the method of treatment determined,
then certain criteria must be met by the particular treatment method chosen.
For example, if the Blue Plains facility were to choose to continue to
discharge directly, in addition to secondary treatment, requirements for
additional treatment or alternative management techniques depending on
several factors including availability of cost effective technology, cost
and specific characteristics of the affected receiving water body, might
be imposed.
In order for conditions, including those related to the disposition
of sludge, to be imposed in a presently issued permit, the conditions must
be determined to be necessary to implement §301(b)(2)(B) or, alternatively,
to achieve the water quality related goals of §301(b)(1) (C) and §302. Thus,
if the applicable §303 water quality standards are set at levels consistent
with the interim 1983 goal of water of sufficient quality to provide for
388
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protection of fish, shellfish and wildlife and recreation in and on the
water (§102(a) (2)) , more stringent limitations are to be included in
order to meet those standards (§301(b)(1)(C)). If, however, neither the
limits based on BPWTT (§201(g)(2)(A) and §301(b)(2)(B)) nor those based on
water quality standards (§301(b) (1) (C) and §303) will achieve that goal,
then a permit now issued but expiring post-1977 may include conditions
necessary to achieve that goal only if the procedural and substantive stan-
dards of §302 are satisfied. In either event, the legality of conditions
relating to sludge disposal would depend, as I have stated above, upon the
finding of a factual nexus between sludge disposal techniques and effluent
quality.
ISSUE OF LAW NO. 2
QUESTION PRESENTED
"May the permit legally contain a moratorium to limit new growth to
emergency needs pending achievement of water quality standards, in other
words, a sewer-hookup ban?"
CONCLUSION
The permit may not require a sewer-hookup ban. However, the permit
may contain provisions requiring an orderly or planned system of new sewer
connections.
Second, the permit may contain a notice that under given conditions
§402(h) would be implemented by the Administrator by seeking a court sanc-
tioned ban on sewer-hookups in the event of violations of the permit.
389
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8
Finally, provisions may be included in a permit implementing §402(b)(8)
and 40 C.F.R. §125.26(b) which would require the publicly-owned treatment
works to provide notice to the Administrator when there were any new addi-
tions of pollutants into the treatment works from a new source, that is, a
source which would be subject to §306 of the Act if such source were dir-
ectly discharging pollutants, or any new introduction of pollutants which
exceed 10,000 gallons in any one day into such treatment works from a
source which would be subject to §301 of the Act if it were direct discharger,
or any substantial change of pollutants from a source introducing pollutants
to the treatment plant at the time of issuance of the permit.
DISCUSSION
Section 402(h) of the Act provides that "in the event any condition of
a permit for discharges from a treatment works (as defined in Section 212
of this Act) which is publicly owned is violated, a State with a program
approved under subsection (b) of this section or the Administrator, where
no State program is approved, may proceed in a court of competent jurisdic-
tion to restrict or prohibit the introduction of any pollutant into such
treatment works by a source not utilizing such treatment works prior to the
finding that such condition was violated." This section provides authority
to the Administrator, after a violation has occurred, to seek injunctive re-
lief against any further pollutants being introduced into the public system
which is in violation of its permit. This provision does not give direct
authority to EPA to include in the permit a ban on future connections to
the Blue Plains treatment system prior to violations of the permit. When
the permit is being developed, conditions are to be imposed relating to
390
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9
development of treatment capacity in order to meet secondary treatment re-
quirements and water quality requirements to accommodate pollutant loadings ._3/
However, on the basis of the §402(a)(2) provision requiring the imposition
of conditions necessary to insure compliance with a permit, it is my opinion
that the Administrator has authority to include in the NPDES permit condi-
tions requiring orderly planning of new connections and management of con-
nections to the system. The conditions might call for careful planning,
engineering and management of new connections. For example, where the per-
mittee had control upon the new connections to its system a general overall
management system or comprehensive planning would be a legitimate condition
to assure compliance with the effluent limitations in the permit.
Section 402(a)(2), as well as the potential responsibilities imposed
on the Administrator in Section 402(h), authorizes the inclusion of a notice
provision indicating to the permittee that the permitted system may be
subject to injunctive relief to curtail additional contributions to the
system once a violation of the permit has occurred.
Moreover, pursuant to 40 C.F.R. §125.26(b), as patterned after Section
402(b)(8), "if the permit is for a discharge from a publicly-owned treat-
ment works, the Regional Administrator should require the permittee to
_3/ Thus the permit must contain limitations sufficient to insure that appli-
cable water quality standards are met by July 1, 1977. Attainment of these
water quality standards may entail restrictions in the amount of pollutants
discharged. This may be attained either by a partial diversion of the efflu-
ent to land disposal, a higher level of treatment afforded the effluent or
a ban on any new introduction of pollutants or some combination of these al-
ternatives. Moreover, it is conceivable that the secondary treatment re-
quirements for BOD, suspended solids, etc. may not be attainable without
direct restrictions on flow from the treatment facility. Conditions dir-
ected at a controlled flow are clearly permissible permit requirements. These
requirements may have the effect of a ban on new connections. The choice is
up to the permittee. Not until the permit conditions are violated does EPA
have the authority to insist that a ban be imposed.
391
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10
provide notice to the Regional Administrator of the following: (1) any
new introduction of pollutants into such treatment works from a source _
which would he a new source as defined in §306 of the Act if such source
were discharging pollutants; (2) any new introduction of pollutants which
exceeds 10,000 gallons on any one day into such treatment works from a
source which would be subject to §301 of the Act if such source were dis-
charging pollutants, and (3) any substantial change of volume or character
of pollutants being introduced into such treatment works by a source intro-
ducing pollutants into such works at the time of issuance of the permit."4V
ISSUE OF LAW NO. 3
QUESTION PRESENTED
"May the permit legally prohibit the use of ferric chloride and alum
in the sewage treatment process? That is, may the permit proscribe certain
treatment methods?"
CONCLUSION
Pursuant to §402 of the Act the Regional Administrator has authority
to include conditions limiting the discharge of ferric chloride and alum
if these limitations relate to compliance with applicable water quality
standards or are determined by the Regional Administrator to be pollutants,
in addition to those regulated by the secondary treatment standards, re-
quiring control and treatable in the municipal treatment plant by secondary
treatment. He may not, however, prohibit them simply as an attempt to cir-
cumvent a particular treatment technique.
4_/ Residences' and other sources of domestic sewage are sources which are not
publicly owned treatment works and therefore are subject to Section 301 and
306 requirements when they are direct dischargers.
392
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11
DISCUSSION
As discussed previously, in accordance with §402(a) the Regional Ad-
ministrator has authority to impose conditions which will insure compliance
with §301, §302, §306, §307, §308 and §403 of the Act including conditions
to prevent violations of water quality standards.
The basic parameters of secondary treatment are, as set forth in 40
C.F.R. §133, BOD, suspended solids, pH and fecal coliform. Neither ferric
chloride nor alum are regulated. Therefore, limitations on either of these
parameters must arise from a different statutory authority. For example,
pursuant to Section 301(b)(l)(C) water quality standards might warrant pro-
visions limiting or prohibiting ferric chloride and alum.
The preamble to the proposed secondary treatment standards provides
that:
. . .it is intended that permits will be issued
to publicly owned treatment works which may im-
pose effluent limitations applicable to pollu-
tants other than biochemical oxygen demand, sus-
pended solids, pH, and fecal coliform. Such
limitations will reflect and take into con-
sideration pretreatment requirements that may
be imposed upon specific discharges pursuant
to section 307, and such pretreatment require-
ments will take into account levels of reductions
which will be attainable by a given municipal
treatment plant by secondary treatment.
39 Fed. Reg. 10642 (April 30, 1973)
Thus, if the Regional Administrator finds that these pollutants are
not within the established secondary treatment standards, he may, pursuant
to his authority under Section 402(a), establish limits on these additional
393
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12
pollutants. In so establishing these limits he must give consideration to
such factors as the reduction levels attainable by a given municipal treat-
ment plant by secondary treatment, as discussed in the proposed regulations.
However, the Act does not authorize the prohibition of the use of
ferric chloride and alum as a means of specifying a particular sewage treat-
ment process. The Congressional history demonstrates that EPA is not to
prescribe any technologies. EPA is to set effluent limitation guidelines
after identifying applicable treatment technologies capable of attaining
those effluent limits.
The Committee expects that the identification
will be in objective terms and will set out
actual perfarmance [sic] levels for the classes
and categories of point sources rather than
prescribing specific control techniques, pro-
cesses, or equipment ....
[T]he Committee intends that the degree of
reduction be specified in objective terms
and that the incorporation of a specific
process shall not be required. This means
394
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13
that the Administrator shall not prescribe
a specific design or process in order to
meet the requirements of best available
demonstrated control technology but instead
shall set out effluent limitations which
are consistent with such best available
demonstrated technology. Leg. Hist. 794-95.
Although this legislative history is directed at the development of industrial
effluent limitations and guidelines pursuant to §304, Congress indicated that
secondary treatment regulations were to be developed, as industrial limits
were, based on available technology.
The application of Phase I technology to indus-
trial point sources is based on the control
technologies for those sources and to publicly-
owned treatment works is ba&ed upon secondary
treatment. It is not based upon ambient water
quality considerations. (Leg. Hist, p. 1461.)
Therefore, it is not within authority of the Regional Administrator to de-
fine particular treatment methods.
ISSUE OF LAW NO. 4
QUESTION PRESENTED
"Should the permit require that daily sewage flows to the Blue Plains
plant be diverted to a land treatment system or a sewage farm?"
CONCLUSION
EPA has made a determination in defining "best practicable waste treat-
ment technology" that land treatment systems and sewage farms are alternative
treatment techniques. The appropriate treatment alternative is a determination
395
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14
to be made pursuant to Section 201 of the Act. Once that choice has been
made, conditions may be imposed on implementation of the chosen technique.
A present permit may not require diversion to land treatment unless there
is a direct nexus between that treatment and effluent limitations required
in the permit.
DISCUSSION
As discussed supra, EPA is not authorized, except through the grant
provisions of §201, to dictate what sewage method disposal a particular plant
should follow. As provided in the BPWTT provisions, EPA may only insist
on certain criteria once an alternative has been explored and selected to
ensure that that treatment alternative will work sufficiently.
A requirement that sewage be diverted to land treatment is more per-
vasive than simply assuring that effluent limitations will be met at the
Blue Plains facility under the 1977 permit. It would, in effect, dictate
which treatment technique should be used by Blue Plains. It does not im-
plement the effluent requirements at the facility. As indicated above, EPA
is not authorized to prescribe which treatment technique should be used by
a particular facility except in terms of future requirements under BPWTT.
ISSUE OF LAW NO. 5
QUESTION PRESENTED
"Should the permit specify that the existing facilities at Blue Plains
be used to entrap and treat the combined storm and sanitary sewer flows
which occur during rainstorms?"
396
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15
CONCLUSION
The present NPDES permit may not specify that the facilities at Blue
Plains must entrap and treat combined storm and sanitary sewer flows. However,
limitations and requirements may be imposed in combined sewer flows which
ultimately might have the effect of diverting combined sewer flows to
the treatment facility.
DISCUSSION
Pursuant to §301 and §402 the point sources from which the combined
storm and sewage flows occur are subject to permit issuance and effluent
limitations. In addition, water quality standards, §401 state certifica-
tion requirements, §208 plans, or §402(b)(6) Corps of Engineers require-
ments, may necessitate the placing of various limitations, including zero
discharge requirements, on combined sewer flows. Attainment of such
limitations may entail the indirect treatment of combined sewer flows
at a municipal plant such as Blue Plains. However, the method by which
the permittee chooses to treat these combined sewage overflows may
not be a subject of a specific provision in the Blue Plains permit.
Permittee may not be required to divert these flows to Blue Plains.
Such a provision is an attempt to require a specific treatment technique.
The Regional Administrator may not, as indicated above, specify treat-
ment techniques for particular discharges.
ISSUE OF LAW NO. 6
QUESTION PRESENTED
"May the permit legally contain a compliance schedule reflecting stan-
dards which would ensure the safe use of the Potomac estuary as a source of
potable water supply, assuming that the existing water quality standards
do not contain a drinking water standard?"
CONCLUSION
Such a condition or compliance schedule may be included in a permit
397
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16
if it is premised on attaining §302 effluent limitations but such
conditions would have to meet both the substantive and procedural require-
ments of §302, as indicated in the Opinion of General Counsel No. 2.
DISCUSSION
A condition in the NPDES permit in question related to a potable water
supply cannot be based on existing water quality standards, according to
the question presented. Moreover, compliance schedules directed at a viable
water supply may not be extrapolated from the secondary treatment require-
ments. However, §302 provides that
Whenever...discharges of pollutants from a
point source or group of point sources, with
the application of effluent limitations re-
quired under Section 301(b)(2) of this Act,
would interfere...with the attainment or
maintenance of that water quality...which
shall assure protection of public water
supplies, agricultural and industrial uses,
and the protection and propagation of a
balanced population of shellfish, fish and
wildlife, and allow recreational activities
in and on the water, effluent limitations...
shall be established which can reasonably
be expected to contribute to the attainment
or maintenance of such water quality.
As I indicated in Opinion of General Counsel, No. 2, the legislative his-
tory ties §302 directly to the 1983 goal that "whenever attainable, an in-
terim goal of water quality which provides for the protection and propaga-
tion of fish, shellfish, and wildlife and provides for recreation in and on
the water be achieved by July 1, 1983." Section 101(a)(2). We concluded
there that effluent limitations and compliance schedules may be fashioned
in a permit presently issued but expiring after July 1977 which aim toward
the 1983 interim water quality goal if BPT and BAT limitations, or in this
case secondary treatment and BPWTT limitations, are insufficient for that
goal. Thus, a permit extending beyond the 1977 date may contain conditions
beyond the 1977 requirements dir«.»«•-• "oward compliance with the 1983 goal.
398
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17
Such a permit may contain compliance steps that would assure proper imple-
mentation of BAT after the BPT requirements are complete and, secondly, §302
may be invoked to impose additional compliance steps. However, §302 pro-
vides for certain administrative proceedings prior to imposition of water
quality related effluent limitations, i.e., it provides that stricter limi-
tations can be required only after a hearing in which the Administrator
determines the balance between economic and social cost of achieving the
stricter controls and the social and economic benefits. Thus, in order for
the present permit to contain as a condition a schedule of compliance aiming
toward a future adequate water supply, the special procedural requirements
of §302 must be observed.
ISSUE OF LAW NO. 7
QUESTION PRESENTED
"May the permit legally contain effluent limitations for viruses, re-
fractory organics, heavy metals, chlorinated hydrocarbons, and other toxic
substances?"
CONCLUSION
The pollutant parameters at issue may be restricted by effluent limita-
tions either because they violate water quality standards or because they
are deemed toxic pollutants for which conditions are set on a case-by-case
basis prior to promulgation of standards under §307 if the Regional Adminis-
trator determines that they are necessary to achieve compliance with the Act,
399
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18
DISCUSSION
As indicated above, there are several bases on which effluent limita-
tions may be required for pollutants which are not regulated under the sec-
ondary treatment requirements. For example, if these substances violate
water quality standards, they must be regulated.
Moreover, prior to the promulgation of standards under Section 307 (a),
the Administrator has the authority under Section 402 (a) (1) to issue per-
mits with such conditions as he "determines are necessary to carry out the
provisions of the Act." Based on information now available to him, he
could include in permits conditions on effluent discharge consistent with
the need to protect the environment from toxic pollutants. The permit
conditions on toxic effluents would be superseded when toxic standards
for such pollutants take effect. See Opinion of General Counsel, No. 2.
Dated:
Robert V. Zener
General Counsel
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF LAW
PURSUANT TO 40 CFR §125.36(m)
No. 34
In the matter of National Pollutant Discharge Elimination System
Permit for Public Service Company of Indiana, Inc. (PSI) Gallagher Generating
Station, IN-0002798, New Albany, Indiana, the Presiding Officer has
certified three issues of law to the General Counsel for decision
pursuant to 40 CFR §125.36(m). The parties, having had the
opportunity to provide written briefs in support of their respective
positions, present the following issues:
ISSUE OF LAW NUMBER I
Question Presented
"Does section 125.36(h)(4)(viii) of the Administrator's regulations
authorize a Presiding Officer to strike an issue from an adjudicatory
hearing when that issue raises an objection to a specific limitation
set forth in the permit and the requestor contends that a less stringent
limitation is required to carry out the intendment of the Act?"
Conclusion
Yes. The Presiding Officer, pursuant to 40 CFR §125.36(h)(4)(iii) and
(viii) is authorized to "Identify disputed issues for consideration at
the hearing" and to "Strike issues not material or not relevant to
the question of whether a permit should be issued and what conditions to
such permit would be required to carry out the intendment of the Act."
401
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2
Whether or not the identification or striking of such an issue is
justified in the particular case depends, of course, upon the
specific facts involved.
Discussion
The question above can-be answered only after consideration of
the basis of the requestor's objection. In the facts of this case, the
permit limitation in question is based upon applicable effluent regulations
promulgated on October 8, 1974, pursuant to Sections 301 and 304 of
the Federal Water Pollution Control Act, and found at 40 CFR Part 423.
Several types of issues may be raised in adjudicatory hearings
which relate to the establishment of less stringent effluent limitations.
For example, if PSI alleges facts which would show that "factors related
to such discharger are fundamentally different from the factors considered
in the establishment of the guidelines" (upon which the permit limitation
is based), then the discharger would be entitled to an adjudicatory
hearing on the question of whether more or less stringent limitations
should be established for such discharger under the so-called "variance
clause," 40 CFR §423.32(a). Factual issues related to a variance
request might well raise issues "material... [and] relevant to the
question of whether a permit should be issued and what conditions to
such permit would be required to carry out the intendment of the Act."
Such issues may not properly be excluded from an adjudicatory hearing.
Other types of factual issues may be raised in connection with a
pen-rot based upon effluent regulations. For example, a discharger
Tip. ght raise iactual issues concerning whether or not the Regional
Auiidnistrator has properly applied the regulations to his facility,
402
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3
or has correctly determined the proper subcategory for the facility.
However, an objection to applicable limitations based on a general,
unspecific challenge that a less stringent limitation is required to
carry out the intendment of the Act, where the requestor, in effect,
acknowledges that he cannot make a showing of fundamentally different
factors, is not allowable under the regulations cited above. As stated
in Decision of the General Counsel Number 23, "the question of which
guideline applies to a particular plant, what limits are appropriately
derived from the guidelines, and whether a plant is entitled to a
variance from the guidelines are proper subjects for adjudicatory
hearings." The "intendment of the Act" and implementing regulations
is to limit consideration of questions relating to application of
effluent guidelines in permits to such questions as fall within those
categories described in the Opinion above.
If it is clear that permit applicant's operations fall within the
applicable guidelines, then an objection to the limitation based on
permittee's interpretation of the intendment of the Act is simply a
challenge to the basis of the guideline themselves. I have repeatedly
concluded that such challenges are to be heard exclusively in the
Circuit Courts of Appeal pursuant to section 509(b) of the Federal Water
Pollution Control Act. See Opinion of the General Counsel No. 3,
March 6, 1975; No. 23, July 3, 1975; No. 32, October 14, 1975.
403
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4
Question Number II
"Is there jurisdiction under 40 CFR 125.36 et seq. to consider
evidence that is submitted to demonstrate that a plant is entitled to
a less stringent limitation under 40 CFR 423.32 (a)?"
Answer
Yes.
Discussion
40 CFR §423.32, entitled "Effluent limitations guidelines representing
the degree of effluent reduction attainable by the application of the best
practicable control technology currently available," is divided into two
subsections. Subsection (b) sets specific effluent limitations as
determined by the Agency; subsection (a) provides for modification of
these limitations where factors relating to a discharger's operation are
"fundamentally different" from the factors considered in setting the limitations.
Given the repeated intent of Congress that "effluent limitations applicable
to individual point sources within a given category or class be as uniform
as possible," _!/ the "fundamentally different" standard is a stringent one
designed to allow for the truly exceptional situation, while maintaining
the integrity of the regulations as a whole.
Where a Regional Administrator finds, in connection with permit issuance
proceedings, that a variance should be denied (or granted with the
Administrator's concurrence), any interested party has, under 40 CFR
§125.36, the right to request an adjudicatory hearing to consider factual
I/ S. Report No. 92-1236, 92d Cong., 2d Sess. 126 (1972)
404
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5
issues underlying this finding. Such hearing should be granted if
it raises "material issues of fact relevant to the questions of
whether a permit should be issued, denied, or modified." 40 CFR
§125.36(c)(1)(ii). Of course, after an adjudicatory hearing is
granted, the Presiding Officer has authority to determine issues
to be considered at such hearing. 40 CFR §125.36(h)(4)(iii).
Question Number III
"Does a permittee have the right under the Federal Water Pollution
Control Act and 40 CFR §125.36 to submit evidence at an adjudicatory
hearing to demonstrate that, in the facts of the particular case,
it would be arbitrary and capricious to require compliance with a
particular limitation in the permit that was derived from effluent
limitations guidelines promulgated by EPA?"
Answer
No.
Discussion
In support of its position on this point, PSI presents an argument
for some measure of flexibility in the application of agency rules based
on National Petroleum Refiners Assn. v. F.T.C., 482 F.2d 672 (1973), and
WAIT Radio v. F.C.C., 418 F.2d 1153 (1969). The variance procedure
provided by 40 CFR §423.32(a), discussed above, provides for just such
flexibility in the exceptional case. Where the requisite extraordinary
circumstances do not exist, the regulations of 40 CFR §423.32(b) supply
the rule.
405
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If PSI is arguing that the regulations have been, by their own
terms, improperly applied, that question may be raised in permit
issuance proceedings. If, on the other hand, PSI is claiming that
the regulations, as properly applied, should not apply to their
facility, they are simply attempting to raise in another guise a
challenge to the regulations themselves. This, as I have stated
above, is impermissible in permit issuance proceedings.
At page 13 of its brief, counsel for PSI states that their argument
rests "... not on the regulations of the Administrator, but rather on
an interpretation of the Federal Water Pollution Control Act which
assures consistency with the requirements of the Administrative Procedure
Act and the due process clause of the Constitution." It has consistently
been my position that the General Counsel will not consider constitutional
challenges in these opinions. Such challenges must be raised before the
Courts of Appeal.
Date:
NOV 20 19/S
Robert V. Zener7
, 1975
406
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
DECISION OF THE GENERAL COUNSEL
ON MATTERS OF LAW PURSUANT
TO 40 C.F.R. §125.36(m)
No. 35
In the matter of National Pollutant Discharge Elimination System
Permit No. ID-002194-6, City of Ketchum, Idaho, the Regional Adminis-
trator has certified nine issues of law to the General Counsel for de-
cision pursuant to 40 C.F.R. §125.36(m) (30 F.R. 27078, July 24, 1974).
The parties, having had an opportunity to provide written briefs in sup-
port of their respective positions, present two types of issues.
Issues of Law Nos. 1, 2, and 7 raise constitutional questions. As
I have previously determined, the General Counsel will not deal with con-
stitutional issues in these opinions; such issues must be raised before
and decided by the courts of Appeals.
The remaining issues are discussed below:
ISSUE OF LAW NO. I
Question Presented
"Do the proposed permit conditions conflict with Section 208 of
FWPCA (Public Law 92-500) in as much as an areawide plan has been com-
menced and may, when completed, dictate conditions and requirements in
contravention of those contained in NPDES permit number ID-002028-1?"
407
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Conclusion
No.
Discussion
Section 208 of the Act provides for the States to prepare and to
carry out areawide waste treatment management plans. That section re-
quires approved plans to be put into effect under the other provisions
of the Act. Relevant here is §208(e), which states:
No permit under section 402 of this Act
shall be issued for any point source
which is in conflict with a plan approved
pursuant to subsection (b) of this sec-
tion. (Emphasis supplied.)
This provision is relied upon by the applicant for the proposition that
no permit may be issued until completion of the "Elaine County Waste
Water Facility Plan."
The applicant concedes that this plan is not a §208 plan, but "may
well be expanded or appropriately designated as a Section 208 plan."
Applicant's brief at 8. But even if it were a draft §208 plan, §208(e)
has no applicability to a draft plan, but applies on its face only to a
plan "approved [by the Administrator of EPA] pursuant to subsection (b)
of this section." Since the plan described by the permittee has not been
so approved, it can have no effect upon the issuance of this permit.
If the requestor is arguing that no permit can be issued until a
§208 plan for an area is completed, it has misconstrued the Act. As was
stated in Decision of the General Counsel No. 21:
408
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There is nothing in either the Act or
its legislative history to indicate
that regulation of these sources was
to await completion of section 208
planning efforts. In fact, the dead-
lines and schedules set out in the
Act itself support a contrary infer-
ence.
See also §402(k) of the FWPCA.
ISSUE OF LAW NO. II
Question Presented
"Is the issuance of NPDES permit number ID-002028-1 an unlawful
attempt to obligate the City of Ketchum to inventory and make quantative
[sic] and qualitative analysis of pollutants which the Congress has dir-
ected the Administrator, in cooperation with the states and the assis-
tance of appropriate federal agencies, to prepare under FWPCA Section 305
(33 U.S.C.A. Section 1315)?"
Answer
No.
Discussion
This issue incorporates referred issues numbers 4 and 9. The requestor
argues that "No authority can be found in the Federal Water Pollution Con-
trol Act for that portion of NPDES permit number ID-002028-1 which pur-
ports to obligate the City of Ketchum to inventory, and make quantative
[sic] and qualitative analysis of pollutants discharged into the Big Wood
River." Such authority may be found in Section 308 of the Act, which
409
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authorizes the Administrator to require any point source to "install,
use, and maintain . . . monitoring equipment or methods" and to "sam-
ple . . . effluents (. . . in such manner as the Administrator shall
prescribe)", and to "provide such other information as he may reasonably
require . .. .." Conditions to implement §308 may be included in NPDES
permits. §402(a)(1).*
The mere fact that the Administrator is directed by Section 305
of the Act to inventory water quality and point sources in no way pre-
cludes him from gathering monitoring information by permit conditions.
In the first place, such conditions may clearly be established for deter-
mining whether the applicant is "in violation of any . . . effluent
limitation" under the Act. §308(a)(2). Moreover, the Administrator
is specifically authorized by §308(a)(4) to require point sources to
monitor and report the results whenever required in "carrying out [Sec-
tion] 305 ... of this Act." Thus, even if the monitoring in question
were being carried out in order to implement §305, the requestor may
clearly be required to carry out such monitoring under §308.
ISSUE OF LAW NO. Ill
Question Presented
"Is Section 509 of the Federal Water Pollution Control Act in con-
flict with 40 C.F.R. §125.36(b) in as much as the latter purports to
* The Act contains no support for the requestor's argument that moni-
toring conditions are limited to those necessary to ensure compliance
with water quality requirements, nor has the requestor cited any such
authority.
410
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obligate the requestor to provide witnesses at the expense of the re-
questor when the former Section infers [sic] that said cost should be
at the expense of the United States."
Answer
The requestor's question challenges a duly promulgated regulation
of the Administrator as unlawful. Such challenges must be brought before
the appropriate Federal court.
Discussion
See Decisions of the General Counsel No. 5, April 4, 1975; No. 18,
June 25, 1975; No. 21, June 27, 1975; No. 29, September 4, 1975.
ISSUE OF LAW NO. IV
Question Presented
"Do the procedures utilized for implementing the Federal Water Pol-
lution Control Act (Public Law 92-500) encourage the drastic minimiza-
tion of paperwork and interagency decision procedures, with the best use
of available manpower and funds, so as to prevent needless duplication
and unnecessary delays at all levels of government in accordance with
Section 101(f) of the Act."
Conclusion
This provision has no applicability to the instant permit.
411
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Discussion
The requestor's argument appears to be that since there is a plan
in preparation which is expected to recommend water pollution control
measures for the area including the requestor's treatment works, no
permit should be issued until the completion of such plan, and that issu-
ance of the permit now would cause "facility duplication and wasteful
expenditures of money proscribed by Section 101 of the Act."
To the extent that this argument challenges the procedures set forth
in 40 C.F.R. Part 125, it is not to be considered here. See Discussion
of Issue III, supra. Other than that, the requestor's argument founders
upon the same shoals as its argument based upon the absence of a §208
plan. As previously indicated, the target dates in the Act for permit
issuance underscore Congress' intention that permit issuance proceed
as quickly as possible. Delay occasioned by completion of planning pro-
cesses was simply not contemplated or authorized. It is a strange con-
struction whereby a provision specifically inserted to prevent "red tape",
H. Kept. No. 92-911, 92d Cong., 2d Sess. at 79-(1972), could be applied
so as to encourage delay in permit issuance.
412
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ISSUE OF LAW NO. V
Question Presented
"May an NPDES permit be issued prior to completion of a study as
specified in Section 305(a)(2) of the Federal Water Pollution Control
Act Amendments of 1972?"
Conclusion
Yes.
Discussion
This issue was resolved by Decision of the General Counsel No. 21,
June 27, 1975, where I stated:
It would be completely contrary to the pur-
poses of the Act to construe [Section 305]
so as to impede the implementation of pro-
visions that were clearly to be carried out
vigorously and expeditiously.
Dated:
General Counself
413
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, B.C. 20460
DECISION OF THE GENERAL COUNSEL ON MATTERS OF LAW PURSUANT TO
40 C.F.R. Section 125.36(m)
NO. 36
In the matter of National Pollutant Discharge Elimination System,
Permit Number PA0002208, for St. Joe Minerals Corporation, Monaca,
Pennsylvania, the Presiding Officer has certified one issue of law to the
General Counsel for decision pursuant to 40 C.F.R. §125.36(m). The parties,
having had an opportunity to provide written briefs in support of their
respective positions, present the following issue:
QUESTION PRESENTED
"In a situation where a permittee was issued a permit which was not
based on point source category effluent guidelines and was granted an
adjudicatory hearing with regard to said permit, may said permittee be
prevented from offering evidence of appropriate effluent limitations at
the adjudicatory hearing on the ground that guidelines were promulgated
subsequent to its request for adjudicatory hearing?"
CONCLUSION
No.
DISCUSSION
At the outset, a brief review of the chronology of events of this
proceeding may be useful to an understanding of the issue presented and
my conclusion.
414
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The facts which are agreed to by St. Joe Minerals Corporation (St. Joe)
and the Region, are as'follows. On December 16, 1974, EPA issued an NPDES
permit to S-t. Joe for a zinc smelter which it operates at Monaca, Pennsylvania.
The permit contained limits on the discharge of zinc, applicable after July lt
1977, of 62.5 Ibs. daily average and 187 Ibs. daily maximum. St. Joe filed a
request for an adjudicatory hearing in which it sought more lenient limitations -
110 Ibs. of zinc as a daily average and 440 Ibs. daily maximum. The request
was granted and a public notice of the hearing issued on February 18, 1975.
Shortly thereafter, on February 27, 1975, EPA published interim final
regulations for the primary zinc subcategory of the nonferrous metals
Reg
8514 et seq. The Region asserts, that application of those regulations to
the St. Joe Smelter would result in zinc limitations of 62.5 Ibs. daily average
and 125 Ibs. as a daily maximum
St. Joe contends that because its permit was not based on the provisions
of 40 C.F.R. Part 421, it should be permitted to offer evidence at the
adjudicatory hearing in support of its claim that the limits contained in
the permit do not in fact represent the "best practicable control technology
currently available" (Section 301(b)(l)(A) and in support of its proposed
more lenient limitations.
The Region contends that because nationally applicable effluent
limitations have now been promulgated for the pertinent industrial
subcategory, limitations derived from those regulations should govern,
absent a showing by St. Joe that "fundamentally different factors"
obtain at its Monaca facility justifying a modification of the limitations
in Part 421, pursuant to the variance procedure set out in 40 C.F.R. 421.82.
415
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3
Neither party has cited any authority for its respective position. Regardless
of how I might resolve the issue, as a matter of first impression, the question
has been authoritatively determined by the Administrator in a prior Decision
on an appeal pursuant to 40 C.F.R. 125.36(n).
In the Administrator's Decision in U.S. Pipe & Foundry Company (NPDES
Docket No. AHAL002, October 10, 1975), the Administrator ruled that the
appropriate water quality standards and effluent limitations to be applied
in an NPDES permit are those which are in effect at the time the permit is
issued, rather than those which are promulgated after issuance of the permit
but prior to final action following an adjudicatory hearing.
The Administrator stated
"The Act clearly contemplates that NPDES permits will be
issued 'prior to the taking of necessary implementing
actions' relating to requirements under sections 301,
302 and other sections of the Act. In such instances,
the Act provides that permit conditions will be determined
by the Administrator 'as necessary to carry out the
provisions of this Act.' I recognize that permit review
proceedings may consume many months, during which standards
and guidelines for determining permit conditions may change
(or take on greater specificity). These changes may mean
that if the permit was being initially issued today, the
conditions might be either more lenient or more stringent.
It is not a one-way street... .
The standards and guidelines for the preparation of NPDES
permits must be fixed at some point in time so permit
terms can become final and pollution abatement can proceed.
I believe the proper point in time for fixing applicable
NPDES standards and guidelines is when the Regional
Administrator initially issues a final permit."
I believe the principle announced in U.S. Pipe & Foundry is dispositive
of the issue presented here. The permit in question, having been issued
prior to the promulgation of national effluent regulations, was based on the
416
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4
Regional Administrator's "individual assessment [pursuant to section 402(a)(1)]
of the degree of effluent control which represents best practicable control
technology currently available for the individual source in question in order
to meet the deadline set forth in §301 of the Act." Decision of the General
Counsel, No- 4> APril 4, 1975.i/ Since the subsequently promulgated regulations
in 40 C.F.R. Part 421 do not govern as a matter of law, the permittee is
entitled to introduce evidence at the adjudicatory hearing relevant to the
correctness of this individual assessment. By the same token, of course,
the Region is also free to introduce evidence in support of its determination
reflected in the issued permit. And, while the provisions of 40 C.F.R. Part
421 are not automatically binding, they (and the information contained in
the Development Document associated with them), do constitute evidence
relevant to the correctness of the Region's determination and thus to the
propriety of the effluent limitations contained in the permit.
Robert VyZener
General '"Counsel
Date: DEC 12 1975
The conclusion reached in Decision No. 4 has been affirmed in a recent
Decision of the Administrator, St. Regis Paper Company, December 5, 1975.
417
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