Sequoyah Fuels Corporation

Plain-English summary

Sequoyah Fuels Corporation operated a uranium processing plant and used treated wastewater as raffinate fertilizer in a separate farming and ranching operation in Gore, Oklahoma. Native Americans for a Clean Environment sought an evidentiary hearing and argued that the land application should be regulated under the NPDES permit or under RCRA. The Environmental Appeals Board held that the NPDES issue had not been preserved in the comments and hearing request. It also held that the activity was a non-point-source agricultural discharge excluded from NPDES permitting and that RCRA regulation was outside the scope of this NPDES proceeding. The Board denied review.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 122.3, 124.4, 124.13, 124.72, 124.74, and 124.91; 42 U.S.C. § 6972.
• Outcome: Review of the NPDES permit decision was denied.
• Key point: Permit appeals must preserve the issue at the regional level, and an NPDES proceeding generally does not decide separate RCRA regulation.

Full text (EPA EAB public release)

SEQUOYAH FUELS CORPORATION 215
IN THE MATTER OF SEQUOYAH FUELS
CORPORATION
NPDES Appeal No. 91-12
ORDER DENYING REVIEW
Decided August 31, 1992
Syllabus

Petitioner, a citizens group, seeks review of the partial denial of its request
for an evidentiary hearing in connection with the reissuance of an NPDES permit
by U.S. EPA Region VI. Petitioner maintains the land application of certain wastewater
discharged by a uranium processing facility should be regulated under either the
NPDES permit or under RCRA.

Held: Petitioner has failed to preserve for review the issue of whether land
application of wastewater should be regulated under the facility's NPDES permit.
Even assuming the issue had been properly preserved for review, the Regional Admin-
istrator did not commit clear error by excluding such activity from the coverage of
the NPDES permit. Furthermore, there is no exercise of discretion or policy which
is so important under the circumstances of this case as to warrant review by the
Board. Petitioner’s contention that the land application should be regulated under
RCRA is outside the scope of an NPDES permit proceeding. Accordingly, the petition
for review is denied.

Before Environmental Appeals Judges Nancy B. Firestone,
Ronald L. McCallum, and Edward E. Reich.

Opinion of the Board by Judge Firestone:

Petitioner, Native Americans for a Clean Environment (NACE),
seeks review of the partial denial of its request for an evidentiary
hearing in connection with the reissuance of an NPDES permit by
the U.S. Environmental Protection Agency’s Regional Administrator
for Region VI. The Environmental Appeals Board has jurisdiction
to grant or deny this petition for review under 40 CFR §§ 124.72
and 124.91; see 57 Fed. Reg. 5320, 5335-5336 (February 13, 1992).

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216 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
I. BACKGROUND

The Sequoyah Fuels Corporation (“SFC”), the permittee, operates
a uranium processing plant in Gore, Oklahoma.! Separate from its
processing operations at the Gore facility, SFC conducts a ranching
and farming operation. As part of its farming and ranching operation,
SFC uses a raffinate fertilizer spray which is derived from the Gore
facility’s treated wastewater.

On January 16, 1988, Region VI publicly announced its intent
to reissue the NPDES permit for the SFC facility. Under the terms
of the draft permit, the discharges subject to NPDES permitting
would include those flowing from SFC’s outfalls for combined waste,
treated sanitary wastewater, and stormwater surface runoff. At the
public hearing on the draft permit, EPA explained that the permit
would not extend to SFC’s raffinate fertilizer activities, because the
“spray fertilizer activities which are non-point source agricultural
activities * * * are specifically excluded from NPDES permitting
under 40 CFR Part 122.3(e).” (Record, p. 00299.) On May 26, 1988,
Petitioner submitted written comments stating that the land applica-
tion of raffinate fertilizer should be regulated under RCRA. Petitioner
stated that “EPA should immediately commence the regulation of
[permittee’s] raffinate application program under the provisions of
RCRA.” (Record, p. 00259-260.) After Region VI issued the notice
of the final permit decision on October 15, 1988, Petitioner, on No-
vember 15, 1988, filed objections to the final permit and a request
for an evidentiary hearing that reiterated its earlier comments, in-
cluding its contention that the land application of raffinate fertilizer
should be regulated under RCRA. Specifically, Petitioner again stat-
ed: “NACE has requested that EPA RCRA regulate the land surface
application of Barium-treated Uranium Raffinate Solvent Extract.” 2
(Record, p. 00054.) The Regional Administrator granted Petitioner’s
request for an evidentiary hearing on two issues unrelated to the
raffinate fertilizer program and denied the request on the remainder
of the issues, including the RCRA issue. On June 17, 1991, Petitioner
filed a timely notice of appeal and petition for review.

1Sequoyah Fuels’ facility is licensed by the NRC under a source material license
to possess and use natural uranium for the production of UF. from uranium con-
centrates. This license covers treatment, storage and disposal of process and contami-
nated waste materials.

2In its response to Petitioner’s earlier comments, EPA explained in its final permit
decision that “[t]his matter is under review by the RCRA program but is not an
NPDES matter.” (Record, p. 00155.)
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SEQUOYAH FUELS CORPORATION 217
II. DISCUSSION

In its petition for review, Petitioner argues that the Regional
Administrator erred in failing to grant a hearing on the issue of
whether the land application of raffinate should be regulated under
either the NPDES permit program or RCRA. In other words, rather
than restricting the focus of its objections to the Regional Administra-
tor’s refusal to regulate the raffinate spraying under RCRA, Peti-
tioner is now adding the NPDES permit program as a potential
alternative means of regulating this activity. In response to the peti-
tion, the Region argues that the Regional Administrator did not err
because: (1) the land application of raffinate is excluded from the
NPDES permitting requirement as a non-point source agricultural
activity and (2) Petitioner failed to raise the issue of regulating the
raffinate spraying under the NPDES permit in its request for an
evidentiary hearing. The Region concedes that regulation may be
appropriate under RCRA and/or the Atomic Energy Act of 1954, but
maintains the issue of such regulation is not relevant to the issuance
of an NPDES permit under the Clean Water Act. In the permittee’s
response to the petition, SFC similarly argues that the Regional
Administrator did not err because: (1) Petitioner failed to raise the
issue of regulation under the NPDES permit during the comment
period or in its request for an evidentiary hearing and (2) the issue
of regulation under RCRA is outside the scope of the NPDES permit
decision.

Under the rules governing an NPDES permit proceeding, there
is no appeal as of right from the Regional Administrator’s decision.
In the Matter of Miners Advocacy Council, NPDES Appeal No. 91—
23 at 3 (May 29, 1992). Ordinarily a petition for review is not granted
unless the Regional Administrator’s decision is clearly erroneous or
involves an exercise of discretion or policy that is important, and
should therefore be reviewed by the Environmental Appeals Board.?
Id.; 44 Fed. Reg. 32,887 (June 7, 1979)(preamble to 40 CFR Part
124). The petitioner has the burden of demonstrating that review
should be granted. Miners Advocacy Council, supra, at 3; see 40
CFR § 124.91(a). For the reasons stated below, Petitioner has failed
to meet that burden.

3 With respect to appeals under Part 124 regarding NPDES permits, Agency policy
is that most permits should be finally adjudicated at the Regional level. 44 Fed.
Reg. 32,887. While the Board has broad power to review decisions in NPDES permit
cases, the Agency intended this power to be exercised “only sparingly.” 44 Fed. Reg.
32,887; see 57 Fed. Reg. 5320.

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218 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
A. The NPDES issue.

Petitioner raises for the first time in its petition for review the
issue of whether the land application of raffinate should be regulated
under SFC’s NPDES permit. In its comments and request for an
evidentiary hearing, Petitioner specifically argued that the land appli-
cation of raffinate is governed by RCRA. Petitioner cannot now be
heard to argue that this activity should be governed under the Clean
Water Act’s NPDES permit program.

The rules set forth in 40 CFR Part 124 are intended to ensure
that the Region has an opportunity to address any concerns raised
by the permit, thereby promoting the Agency’s longstanding policy
that most permit issues be resolved at the Regional level. See 44
Fed. Reg. 32,887. All reasonably ascertainable issues and all reason-
ably available arguments supporting a person’s position must be
raised by the close of the public comment period. 40 CFR § 124.13.
To preserve an issue for appeal, the petitioner must also raise that
issue in its request for an evidentiary hearing. Miners Advocacy
Council, supra, p. 8. Any person requesting an evidentiary hearing
must also state the disputed legal and factual issues with specificity.4
See 40 CFR § 124.74.

By not asserting in its comments and request for an evidentiary
hearing that the land application of raffinate should be regulated
under SFC’s NPDES permit, Petitioner has failed to preserve this
issue for review by the Board.

In addition, even assuming the Petitioner had preserved the
issue, the Regional Administrator’s decision was not clearly erroneous
and does not involve an exercise of discretion or policy that warrants
our review. The land application of fertilizer as a plant nutrient
or nutritional chemical is an agricultural activity which is not covered
by the NPDES permit program. In 40 CFR § 122.3, the Agency ex-
cludes from the NPDES permit requirement:

(e) Any introduction of pollutants from non point-

source agricultural and silvicultural activities, in-

4A request for evidentiary hearing to reconsider or contest a final NPDES decision

must state each legal or factual question alleged to be at issue and their relevance
to the permit decision, together with a designation of the specific factual areas to
be adjudicated. 40 CFR § 124.74(b)(1). Such requests shall also contain specific ref-
erences to the contested permit conditions, as well as suggested revised or alternative
permit conditions which would be required to implement the purposes and policies
of the Clean Water Act. 40 CFR § 124.74(c)(5).
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SEQUOYAH FUELS CORPORATION 219
cluding storm water runoff from orchards, cultivated
crops, pastures, range lands, and forest lands, but
not discharges from [certain defined] concentrated
animal feeding operations[,] concentrated aquatic
animal production facilities[,] aquaculture projects[,
and] silvicultural point sources[.]

There is no dispute that the land application of raffinate is con-
ducted in association with SFC’s agricultural and ranching activities.
As such, it qualifies as a non-point source discharge not subject
to NPDES requirements. The Petitioner has given us no reason for
questioning the Regional Administrator’s determination. Accordingly,
the Petitioner has failed to establish a basis for review of the Re-
gional Administrator’s decision to exclude the raffinate activities from
the scope of SFC’s NPDES permit.

B. The RCRA issue.5

The Petitioner maintains the Agency should regulate the land
application of raffinate under RCRA. We do not reach the merits
of the issue, for the Petitioner's claim may not be heard in this
proceeding. The scope of an NPDES permit proceeding does not ex-
tend to issues of RCRA regulation unless the NPDES permit and
RCRA permit proceedings for a facility have been consolidated. See
generally 40 CFR Part 124; Cf. In the Matter of U.S. Department
of Energy Pinellas Plant, RCRA Appeal No. 91-3 (July 8, 1992);
Waste-Tech Services and BP Chemicals America, Inc., RCRA Appeal
No. 88-8 (Sept. 22, 1988). In limited circumstances, persons request-
ing an evidentiary hearing on an NPDES permit under 40 CFR
§ 124.74 may also request an evidentiary hearing on a RCRA permit.
40 CFR § 124.74(a)(2). Such a request will be granted only if process-
ing of the RCRA permit is consolidated with processing of the NPDES
permit as provided in 40 CFR § 124.4. 40 CFR § 124.74(a)(2). Consoli-
dation of the proceeding is initiated by the preparation of both draft
NPDES and RCRA permits at the same time. 40 CFR § 124.4(a)(1).

Here, no draft RCRA permit was being processed by Region VI
in a consolidated proceeding. Indeed, Petitioner seeks to impose
RCRA requirements upon the land application of raffinate. The issue
of RCRA regulation over the land application of raffinate fertilizer
has been and continues to be a matter under review by Region VI.
To the extent Petitioner is not satisfied with the Agency’s decision

5 As noted above, there is no doubt that the Petitioner preserved this issue as
it was raised in both its written comments and request for an evidentiary hearing.
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220 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
concerning RCRA jurisdiction, it may pursue its appropriate remedies
for citizen relief under RCRA.®

In sum, the Regional Administrator did not err in denying Peti-
tioner’s request for an evidentiary hearing and the Board finds no
exercise of discretion or policy issue warranting review. Accordingly,
the petition for review is denied.

So ordered.

While we offer no opinion as to the merits of petitioner's RCRA argument,
if the Petitioner believes that EPA has a nondiscretionary duty to regulate SFC’s
raffinate spraying under RCRA, it is free to pursue its remedies under Section 7002
of RCRA. 42 U.S.C. § 6972.

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