Star-Kist Caribe, Inc.

Plain-English summary

EPA Region II petitioned for a substantial modification to the Administrator's April 16, 1990 decision in the Star-Kist matter. That earlier decision addressed whether EPA could authorize schedules of compliance in NPDES permits when applicable state water-quality standards did not authorize them. Region II objected to the statement that a state's failure to provide for compliance schedules in its water-quality standards could be assumed deliberate. The Environmental Appeals Board denied the modification request because granting it would effectively nullify the Administrator's decision, and held that the challenged statement was a legal presumption supported by the statutory scheme and by the uncertainty in state practices. The Board lifted the stay of the Administrator's decision.

Decision snapshot

• Cited authorities: 33 U.S.C. §§ 1251, 1311, 1313, 1314, 1341, 1342, 1362, and 1370; 40 C.F.R. §§ 130.5 and 131.20
• Outcome: Procedural. EPA Region II's petition to modify the Administrator's earlier decision was denied, and the stay of that decision was lifted.
• Key point: A compliance schedule in an NPDES permit cannot authorize discharges that violate applicable state water-quality standards unless the state standard or implementing regulation can fairly be construed to authorize the schedule.

Full text (EPA EAB public release)

STAR-KIST CARIBE, INC. 33

IN THE MATTER OF STAR-KIST CARIBE, INC.
NPDES Appeal No. 88-5

ORDER DENYING MODIFICATION REQUEST

Decided May 26, 1992

Syllabus

This matter concerns a petition by EPA Region II for a substantial modification
to an April 16, 1990 decision of the Administrator in this case. The Administrator's
decision denied a request of the petitioner to overturn portions of an earlier decision
by the Agency's Chief Judicial Officer. The Administrator's decision held, inter alia,
that

[T]he Clean Water Act does not authorize EPA to establish sched-
ules of compliance in the permit that would sanction pollutant
discharges that do not meet applicable state water quality stand-
ards. In my opinion, the only instance in which the permit may
lawfully authorize a permittee to delay compliance after July 1,
1977, pursuant to a schedule of compliance, is when the water
quality standard itself (or the State's implementing regulations)
can be fairly construed as authorizing a schedule of compliance.
The Agency's powers in this respect * * * are no greater than
the States'.

Petitioner objected to a statement in the decision, where the Administrator said,
“If a State does not provide for compliance schedules in its water quality standards,
it may be assumed that the omission was deliberate.” Petitioner asked that the Admin-
istrator's decision be modified “so as not to require EPA to interpret a state's regu-
lator's silence on schedules of compliance as a deliberate statement that none are
allowed, unless there is some other indicator of such state intent.”

Held: The petition is denied. Petitioner failed to justify the requested modification
request, which would allow EPA to establish schedules of compliance as if the Adminis-
trator's decision had never existed. The remark in the Administrator's decision that
the petitioner finds objectionable is a legal presumption, not a factual observation,
and is drawn from a comprehensive analysis of the entire statutory scheme.

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STAR-KIST CARIBE, INC. 37

explicit provisions in a State's regulations or water quality standards
will suffice to overcome the presumption raised by a State's silence.

Petitioner's second argument is based more on practicality than
on law or policy. Petitioner argues that section 401 of the Act enables
States to fend for themselves against EPA-issued permits that might
contain unwanted schedules of compliance, i.e., schedules which, in
the opinion of the States, might possibly undercut their water quality
standards. Petitioner cites this section of the Act because it allows
States to exercise an effective veto power over any EPA-issued permit
if the permit contains a schedule of compliance that is inconsistent
with water quality standards. This argument also is not compelling.
Although petitioner is correct that section 401 is available for that
purpose,¹⁰ it is well to keep in mind that the concerns of States
are not the sole matters at stake. First, there is a matter of adherence
to the law as it is written, not as petitioner might wish it had
been written. Second, the interests of the public are given important
recognition in the Clean Water Act. Specifically, the Act and imple-
menting regulations require States to provide for public participation
in setting water quality standards. See Administrator's Decision at
20 (citing CWA § 303(c); 40 C.F.R. § 131.20). It is therefore appropriate
to ask whether any purpose is served by inviting the general public
to participate in developing state water quality standards without
concurrently giving equivalent publicity to the possibility of later
allowing individual permit applicants to bypass those standards, al-
beit temporarily, pursuant to relaxed schedules of compliance. Peti-
tioner does not address this question, or, more importantly, the con-
cern underlying it, anywhere in its several submissions.¹¹ We believe
the open process contemplated by the regulations, which calls for

¹⁰In his decision, the Administrator specifically acknowledged the States' right
to exercise this power, but he observed that “EPA's longstanding practice of adding
schedules of compliance under the aegis of the 1978 legal opinion may have misled
the States into believing they lack this authority insofar as the schedules are con-
cerned.” Administrator's Decision at 16, n.15.

¹¹Although the public may participate in proceedings for the issuance of individual
permits, and object to overly generous schedules of compliance, the absence of a
written policy on schedules of compliance may lull the public into believing that
there are no exceptions to immediate compliance, and therefore little reason to monitor
individual permits. The same effect on the public is produced if the policy is written
but can only be found in unpublished internal memoranda. Cf. Anthony, Robert A.
“Well, You Want The Permit Don't You?” Agency Efforts to Make Nonlegislative Docu-
ments Bind the Public, 44 Ad. Law Rev. 31, 33 (Winter 1992)“If the [nonlegislative]
document is an internal memo to staff that is not published, there is the additional
problem of secret law, whereunder affected parties do not know the principles by
which their affairs are governed unless they have back-channel sources within the
agency.”).

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38 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

States to make specific provisions for their policies on schedules of
compliance, makes for a more vigilant and informed public and there-
by serves the greater interests of the policies underlying the Clean
Water Act.

Petitioner's last argument, that irrational results will ensue from
the Administrator's decision in the context of section 304(l) of the
Act, is actually an effort to reargue and refine points previously
presented in earlier phases of this proceeding. Those arguments were
rejected then ¹² and are rejected again now. Section 304(l) was en-
acted on February 4, 1987,¹³ nearly 15 years after enactment of the
principal statutory provisions construed in the Administrator's
decision.¹⁴ To argue in the space of one short paragraph, as petitioner
does,¹⁵ that this subsequently enacted statutory provision should
somehow prevail over the entirety of the comprehensive statutory
scheme interpreted by the Administrator falls short of the task. In
any event, the simple truth is that no “irrational results” ensue
from the Administrator's decision, as an examination of petitioner's
concerns quickly discloses.

According to petitioner, the Administrator's decision would give
rise to a situation where persons who discharge toxic waste into
designated toxic hot spots would be allowed up to three years under
section 304(l) to come into compliance with water quality standards,
but dischargers who are discharging into streams not so designated,
presumably less heavily polluted waters, would be denied similar
extensions. The short answer to this charge is that it is possible,
in some instances, for the States to modify their water quality stand-
ards (including associated provisions, if any, for schedules of compli-
ance) for the less heavily polluted streams in order to reduce some
or all of the disparity envisioned by petitioner.¹⁶ Even if modification
is not feasible or desirable, it must be kept in mind that eliminating

¹²See Administrator's Decision at 6, n.5.
¹³Water Quality Act of 1987, PL 100-4, § 308, 101 Stat. 7, 38 (February 4, 1987).
¹⁴The principal statutory provisions considered by the Administrator in his deci-
sion are §§ 101(a) and (b), 301(b)(1)(C), 303(e)(3)(A) and (F), 304(l), 401(a)(1),
402(a)(3), 402(b)(1)(B), 402(k), 502(17), and 510. Except for § 304(l), all of these
provisions were first enacted as part of the Federal Water Pollution Control Amendments
of 1972, Pub. Law No. 92-500, 86 Stat. 816, et seq. (October 18, 1972), and none has
undergone any material change since that time.

¹⁵Petition at 5.
¹⁶Any modification of water quality standards must be carried out in accordance
with EPA regulations, including applicable antidegradation policies. See generally C.F.R.
Part 131 (Water Quality Standards). In addition, effluent limitations in any permits
issued pursuant to a modification would have to be consistent with anti-backsliding
requirements or an exception thereto. See generally CWA §§ 402(o) & 303(d)(4).

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STAR-KIST CARIBE, INC. 39

disparities that result from geography should not be a paramount
concern, particularly if the disparity flows from the structure of the
statutory scheme, as is often the case. Examples of such disparities
in the law of pollution control are not unknown despite the fact
that relative economic advantages or disadvantages may accrue to
individual polluters depending on their location. The Clean Air Act,
for example, draws distinctions between areas close to certain na-
tional parks and wilderness areas and those that are not, with the
result that those close enough to have an effect on those areas are
subject to more rigorous requirements. See, e.g., CAA § 165(d)(2)(C)(ii)
(protecting “air quality-related values” of such areas in addition to
conventional “increment” protection); 42 U.S.C. § 7475(d)(2)(C)(ii). Fi-
nally, petitioner overlooks the fact that notwithstanding these dispari-
ties some States might not want to relax compliance dates for their
less heavily polluted streams. They might wish instead to see higher
standards of compliance observed for those streams, thereby preserv-
ing their relative purity vis-a-vis toxic hot spots. In our opinion,
therefore, there is nothing irrational about the results of the Adminis-
trator's decision as construed and applied in the context of section
304(l).

Accordingly, the petition of EPA Region II is denied and the
stay of the Administrator's decision, entered on September 4, 1990,
is hereby lifted.

So ordered.

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34 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Before Environmental Appeals Judges Ronald L.
McCallum, Edward E. Reich, and Timothy J. Dowling (Acting).

Opinion of the Board by Judge McCallum:

This matter concerns a petition by EPA Region II¹ for a substan-
tial modification to the Administrator's April 16, 1990 decision in
this matter.² The Administrator's decision denied a request by the
petitioner to overturn portions of an earlier decision by the Agency's
Chief Judicial Officer (“CJO”).³ By separate order dated September
4, 1990, the Administrator's decision was stayed pending a ruling
on EPA Region II's petition. For the reasons stated below, the petition
is denied and the stay is lifted.

In view of the nature of our ruling (a denial of a modification
request) and the fact that the Administrator's decision and the CJO's
decision deal comprehensively with the subject of schedules of compli-
ance as presented in this controversy, there will be no attempt here
to provide a general overview of the subject or to explain how or
why today's ruling has come up for consideration. Rather, matters
will be addressed as deemed necessary to dispose of the petition.
Accordingly, the reader is advised to consult the petition and the
previous decisions for a complete understanding of the context of
the instant ruling.

The Administrator's decision holds, inter alia, that:

[T]he Clean Water Act does not authorize EPA to
establish schedules of compliance in the permit that
would sanction pollutant discharges that do not meet
applicable state water quality standards. In my opin-
ion, the only instance in which the permit may law-
fully authorize a permittee to delay compliance after
July 1, 1977, pursuant to a schedule of compliance,
is when the water quality standard itself (or the
State's implementing regulations) can be fairly con-
strued as authorizing a schedule of compliance. The

1See “Petition for Modification of Order on Petition for Reconsideration,” dated
August 13, 1990. The petition is signed by representatives of the Agency's Office
of General Counsel and EPA Region II.

2See “Order on Petition for Reconsideration,” dated April 16, 1990 (referred to
either as “Administrator's Decision” or “Administrator's decision”).

3See “Order Denying Petition for Review,” dated March 8, 1989 (the “CJO's deci-
sion”).

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STAR-KIST CARIBE, INC. 35

Agency's powers in this respect * * * are no greater
than the States'.

Order on Petition for Reconsideration at 5. The chief objection to
this holding, as stated in the petition, is a single remark in the
decision, where the Administrator said, “If a State does not provide
for compliance schedules in its water quality standards, it may be
assumed that the omission was deliberate.” Administrator's Decision
at 17. Petitioner argues that the assumption is unwarranted, is un-
necessary to ensure that States are not forced to accept unwanted
EPA-imposed schedules of compliance, and leads to irrational results
when considered in conjunction with section 304(l) of the Act (which
provides for individual control strategies (permits) for point sources
located on certain listed toxic-contaminated stream segments). Peti-
tioner suggests that the Administrator's decision should be modified
“so as not to require EPA to interpret a state's regulations' silence
on schedules of compliance as a deliberate statement that none are
allowed, unless there is some other indication of such state intent.”
Petition at 6. The practical effect of granting the modification would
be to allow EPA to establish schedules of compliance as if the Admin-
istrator's decision had never existed. In other words, the modification
would nullify the decision.

Petitioner's arguments in support of modification are not compel-
ling.⁴ The remark in the Administrator's decision that petitioner finds
objectionable is a legal presumption, not a factual observation, and
is drawn from a comprehensive analysis of the entire statutory
scheme. Moreover, as a factual observation, the remark, despite peti-
tioner's original assertions, is amply justified: according to petition-
er's recent status report,⁵ there are seven States with no explicit
authorization for schedules of compliance because, in petitioner's

⁴Petitioner repeatedly refers to the Administrator's holding as dicta, claiming
that the Administrator “acknowledges” in a footnote that “the issue of post-1977
standards is dicta (opinion at 3, n.2.) * * *.” An examination of the footnote fails
to support petitioner's contentions; there is in fact no such “acknowledgement” by
the Administrator. Had petitioner instead stated that the last sentence in the footnote
can be read as if the Administrator agreed with petitioner that the post-1977 status
of the standards was not critical to his determination, there might be some merit
to the assertions. Even so, the context of the decision as a whole makes it clear
that the sentence obviously was not crafted with that intent in mind. The water
quality standards at issue were promulgated by the Commonwealth of Puerto Rico
in 1983. But for petitioner's erroneous interpretation of the law, which has forced
petitioner to indulge in the unnecessary fiction of treating “virtually unchanged” post-
1977 standards as if they were really pre-1977 standards, there would be no occasion
to question the post-1977 status of the 1983 standards.

⁵ Petitioner's Status Report (filed April 3, 1992).

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36 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

words, “this appears to reflect a State decision not to allow such
schedules.”⁶ In other words, consistent with the Administrator's re-
mark, there is factual as well as legal justification for interpreting
a State's silence on schedules of compliance in the manner prescribed
by the Administrator's decision. Also, petitioner's status report re-
veals that there are 12 other States with no explicit authorization,
since “there is some uncertainty as to the States' intentions.”⁷ Com-
bining these 12 jurisdictions with the previous 7 produces a total
of 19 jurisdictions in which it would be either wrong (7 jurisdictions)
or imprudent (12 jurisdictions) for EPA to make a unilateral assump-
tion that schedules of compliance are consistent with the States'
wishes.⁸

To the extent the remark in the Administrator's decision may
not accurately reflect an unwritten practice of a particular State,
the State is on notice to conform its practices to the law.⁹ Thus,
it will be necessary for the State to provide for schedules of compli-
ance in a sufficiently prominent way to erase the legal presumption
that otherwise is legitimately drawn from the State's silence. The
responsibility of States under the law to make specific provision for
schedules of compliance, rather than leaving it to the word-of-mouth
policy of whoever may be in charge of the State's permit-issuing
desk at any particular moment, is unequivocal. As the decision notes,
EPA's regulations provide that each State is to have a “continuing
planning process” in place that “must” describe “[t]he process for
developing effluent limitations and schedules of compliance” and “for
establishing and assuring adequate implementation of new or revised
water quality standards, including schedules of compliance * * *.”
Administrator's Decision at 17, n.17 (quoting 40 C.F.R.
§ 130.5(b)(1)&(6)). See also Clean Water Act § 303(e)(3)(A)&(F). In
view of the substantial confusion and uncertainty that the lack of
an easily ascertainable policy can occasion, nothing short of adopting

⁶Id. at 5.
⁷Id. (Declaration of Gary W. Hurdiburgh, Jr. at 7).

⁸The Commonwealth of Puerto Rico, the jurisdiction that gave birth to the instant
controversy, is in the process of amending its standards or implementing regulations
to make express provision for schedules of compliance. See Petitioner's Status Report
(Declaration of Gary W. Hurdiburgh, Jr. at 6 (¶ 14)).

⁹According to petitioner's Status Report, 29 jurisdictions have provisions in their
laws (water quality standards or related regulations, including permit regulations)
that explicitly authorize schedules of compliance in NPDES permits. See Status Report
(Declaration of Gary W. Hurdiburgh, Jr. at 5-6 (¶¶ 12 & 14)). Six (6) others have
begun, but not completed, the steps necessary to provide for such schedules. Id. (Dec-
laration at 6 (¶ 14)).

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