General Electric Company, Hooksett, New Hampshire

Plain-English summary

General Electric Company challenged pH limits and whole-effluent toxicity testing requirements in the NPDES permit for its aircraft-engine hardware facility in Hooksett, New Hampshire. GE argued that the permit should allow mixing zones or dilution when determining pH limits and that the toxicity testing was unnecessary. The Environmental Appeals Board held that New Hampshire's certification adopted the federal permit as the State permit, which showed that the written permit conditions were necessary to satisfy State law and could not be made less stringent. Because the challenged conditions were attributable to State certification, the Board denied review in the federal proceeding.

Decision snapshot

• Cited authorities: Clean Water Act § 401(d); 40 C.F.R. §§ 122.44, 124.53, 124.55, 124.74, 124.76, and 124.91.
• Outcome: Review was denied.
• Key point: A State certification that adopts the federal NPDES permit as the State permit can make the challenged conditions attributable to State certification and place them outside federal evidentiary review.

Full text (EPA EAB public release)

468 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF GENERAL ELECTRIC COMPANY,
HOOKSETT, NEW HAMPSHIRE

NPDES Appeal No. 91-13

ORDER DENYING REVIEW

Decided January 5, 1993

Syllabus

General Electric Company (GE) seeks review of U.S. EPA Region I’s denial of
an evidentiary hearing request on certain conditions in an NPDES permit for GE’s
manufacturing facility in Hooksett, New Hampshire. The facility's effluent consists
of air conditioning condensate and storm water. The permit imposes pH effluent limita-
tions for both effluent streams and toxicity testing requirements for the air condi-
tioning condensate. GE objects to the absence of a permit provision allowing the
use of mixing zones or dilution when determining the pH limitations. GE also contends
that the toxicity testing requirements are unnecessary. In its letter certifying the
draft permit, the State adopted the NPDES permit as the State permit under State
law.

Held: By simultaneously certifying the federal permit and stating that this permit
would be adopted as the State permit, the State of New Hampshire clearly indicated
that nothing less than what was written in the permit would satisfy State law and
that the permit could not be made less stringent and still comply with State law.
Thus, the permit conditions to which GE objects are attributable to State certification
within the meaning of 40 C.F.R. § 124.55(e), and therefore are not subject to challenge
in a federal evidentiary hearing. Review is therefore denied.

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

Opinion of the Board by Judge McCallum:

General Electric Company (GE) seeks review of the denial of
an evidentiary hearing request on certain issues relating to an
NPDES permit issued by U.S. EPA Region I for GE’s manufacturing
facility in Hooksett, New Hampshire. As requested by the Agency’s
Chief Judicial Officer,1 the Region filed a response to GE’s petition

1At that time, the Agency’s Judicial Officers had delegated authority to decide

NPDES permit appeals. Subsequently, effective on March 1, 1992, the position of
Judicial Officer was abolished and all cases pending before the Judicial Officers,

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GENERAL ELECTRIC COMPANY, HOOKSETT, NEW HAMPSHIRE 469

for review. Because we conclude that the disputed permit terms are
attributable to State certification, review is denied.

I. BACKGROUND

GE’s Hooksett, New Hampshire facility is used for the manufac-
ture of aircraft engine hardware for military and commercial applica-
tions. It discharges approximately 2,000 gallons per day of air condi-
tioning condensate through outfall discharges 001 and 002 and storm
water through outfall discharges 004 to 007 into Peters Brook. The
Region issued a draft permit on August 23, 1990. The State of New
Hampshire, Department of Environmental Services, Water Supply
& Pollution Control Division (Pollution Control Division), certified
the draft permit on September 27, 1990. On September 28, 1990,
the Region issued a final NPDES permit governing discharges at
the above-mentioned outfalls.

The permit imposes pH effluent limitations on both the storm
water and air conditioning condensate discharges as well as whole
effluent toxicity (WET) testing requirements on the air conditioning
condensate. The WET testing requirements were set to ensure compli-
ance with the State’s narrative standard2 governing the presence
of pollutants in toxic quantities in the State’s waters. See Exhibit
12 to Region I’s Response to Petition for Review (Response to Com-
ment XXI, citing 40 CFR § 122.44(d)(1)(v)). The pH limitations, with-
out any allowance for a mixing zone or dilution, were set to ensure
compliance with the State’s water quality standards for pH. Id. (Re-
sponse to Comment XXII). In its request for an evidentiary hearing
(dated October 29, 1990), GE argued that the Region erred in estab-
lishing pH effluent limits identical to water quality standards and

including this case, were transferred to the Environmental Appeals Board. 57 Fed.
Reg. 5321 (Feb. 13, 1992).
2The New Hampshire Water Quality Standards, promulgated by the Department
of Environmental Services, Water Supply and Pollution Control Division, provide,
in part:
Unless naturally occurring * * * all classes of waters shall be
free from toxic pollutants or chemical constituents in concentra-
tions or combinations that:
a. Injure or are inimical to plants, animals, humans, or aquatic
life; and
b. Persist in the environment or accumulate in aquatic orga-
nisms to levels that result in harmful concentrations in edible
portions of fish, shellfish, other aquatic life, or wildlife which
may consume aquatic life.
N.H. Code Admin. R., Env-Ws 432.02(4).

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470 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

in not permitting the application of a mixing zone or the use of
dilution when the discharges enter Peters Brook. In addition, GE
argued that the permit’s inclusion of WET testing requirements for
the air conditioning discharge was unnecessary. On May 17, 1991,
the Region denied GE’s request for an evidentiary hearing on the
propriety of these requirements. This appeal followed.

II. DISCUSSION

Under the rules governing an NPDES proceeding, there is no
appeal as of right from the Regional Administrator’s decision. In
re Miners Advocacy Council, NPDES Appeal No. 91-23, slip op. at
3 (EAB, 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.3
See, e.g., In re IT Corporation (Ascension Parish, Louisiana), NPDES
Appeal No. 83-2 (CJO, July 21, 1983); 44 Fed. Reg. 32887 (June
7, 1979) (Preamble to 40 C.F.R. Part 124). The petitioner has the
burden of demonstrating that review should be granted. See 40 C.F.R.
§ 124.91(a).

Section 401 of the Clean Water Act (CWA) authorizes States
to certify that any effluent limitations or monitoring requirements
in a federal NPDES permit will comply with the Act “and with
any other appropriate requirement of State law set forth in such
certification.” CWA § 401(d). Any such limitation or requirement shall
then “become a condition on any Federal license or permit subject
to the provisions of this section.” Id. Challenges to permit limitations
and conditions attributable to State certification will not be consid-
ered by the Agency. Rather, such challenges must be made through
applicable State procedures. See 40 C.F.R. § 124.55(e). It is well estab-
lished that the Agency may not “look behind” a State certification
issued pursuant to section 401 of the Clean Water Act, 33 U.S.C.A.
§ 1341, for the purpose of relaxing a requirement of that certification.
In re Lone Star Steel Company, NPDES Appeal No. 91-5, at 3-
4 (CJO, Nov. 24, 1991); In re Ina Road Water Pollution Control
Facility, Pima County, Arizona, NPDES Appeal No. 84-12 (CJO, Nov.
6, 1985); see also In re City of Denison, NPDES Appeal No. 91-

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. 32887 (June 7, 1979). While the Board has broad power to review decisions
in NPDES permit cases, the Agency intended this power to be exercised “only spar-
ingly.” Id.; see 57 Fed. Reg. 5320, 5336 (Feb. 13, 1992).

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GENERAL ELECTRIC COMPANY, HOOKSETT, NEW HAMPSHIRE 471

6, slip op. at 8 (EAB, December 8, 1992); In re Puerto Rico Sun
Oil Company, NPDES Appeal No. 92-20, slip op. at 14 (EAB, Oct.
23, 1992); Decision of the General Counsel No. 58 (March 29, 1977).
In such circumstances, the person seeking a relaxation of the require-
ment must look to the State for relief. Roosevelt Campobello Inter-
national Park Commission v. United States Environmental Protection
Agency, 684 F.2d 1041, 1056 (1st Cir. 1982) (“the proper forum to
review the appropriateness of a state’s certification is the state court
and * * * [Federal courts and agencies are without authority to
review the validity of requirements imposed under state law or in
a state’s certification.”). Permit conditions are “attributable to State
certification” when, inter alia, the State indicates (in writing) that
these conditions are necessary in order to comply with State law
and cannot be made less stringent and still comply with State law.
40 C.F.R. § 124.53(e)(1) & (3).4

When EPA Region I requested the New Hampshire authorities
to certify the draft permit, the Pollution Control Division responded,
in a letter dated September 11, 1990, with a list of various changes
to both the fact sheet and the permit itself and stated that “[blefore
we certify this permit, all of [these] issues must be resolved.” See
Exhibit 10 to Region I’s Response to Petition for Review. The issues
addressed in the letter encompassed the matters under consideration
in this appeal. Id. The certification came a few days later in a one-
page letter dated September 27, 1990, in which the Director of the
Division, apparently satisfied with the Region’s revisions to the draft
permit, stated in pertinent part as follows:

After appropriate staff review, State Certification is
hereby granted for the proposed permit pursuant to
section 401 of the Clean Water Act. Upon final issu-
ance, the Division also adopts the NPDES permit
as a state permit pursuant to RSA 485-A:13,I(a).

Although this certification does not explicitly say that the permit
conditions are necessary or that they cannot be made less stringent,
we are confident that the words employed by the Director were in-
tended to communicate these exact ideas. By simultaneously certify-
ing the permit and stating that the federal permit would be adopted
as the State permit, the Director clearly indicated that nothing less

4Section 124.53(e) also contains a paragraph (2) that requires the State to specify
those conditions more stringent than those in the draft permit which the State finds
necessary to comply with the applicable provisions of the CWA and appropriate re-
quirements of State law. In the present case, however, the State’s certification letter
does not indicate that any conditions in the draft permit must be made more stringent.

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472 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

than what was written in the permit would satisfy State require-
ments. In other words, the permit’s conditions and limitations were
necessary and could not be made less stringent and still satisfy State
law.5 The requirements of the federal regulation have therefore been
satisfied. See In re Lone Star Steel Company, NPDES Appeal No.
91-5, at 5-6 (CJO, Nov. 24, 1991). Accordingly, GE’s objections to
the permit—the absence of a provision allowing for the use of dilution
or mixing zones and the requirements for WET testing 6—are “attrib-
utable to State certification” within the meaning of 40 C.F.R.

'This conclusion is further confirmed by the fact that the Pollution Control Divi-
sion’s staff indicated that the permit’s conditions relating to the WET testing and
pH issues were integral to the protection of water quality. For example,

1. In referring to the WET testing requirement, the Pollution
   Control Division’s September 11, 1990 comment letter, supra,
   which preceded the September 27, 1990 certification letter, states
   that the permit’s “toxicity limit * * * will ensure that the water
   quality standards are met.”

2. In referring to the pH issues, the same letter directs the Region
   to make certain modifications to the pH provisions of the draft
   permit, to bring them into conformity with the language of the
   New Hampshire water quality standards (specifically, the pH
   range for Class B waters), and remarks that the modifications

are needed “[t]o be consistent with other New Hampshire permits

®The Region denied GE’s evidentiary hearing request on the WET testing issue
because the request raised a legal question rather than a material question of fact
suitable for a hearing. See 40 C.F.R. §124.74(b)(1) (Note) (requiring the Regional
Administrator to deny requests for evidentiary hearings that raise legal issues only);
In re Ina Road Water Pollution Control Facility, Pima County, Arizona, supra, at
note 1. We sustain the Region’s denial since the Region correctly concluded that
GE’s request did not raise an issue suitable for an evidentiary hearing; in so doing,
however, we note that we arrive at this conclusion by a slightly different route than
the Region. In denying the evidentiary hearing request, the Region did not rely on
the State’s certification with regard to the permit’s WET testing requirements, nor
did the Region rely on the certification in responding to GE’s petition for review
of these requirements. As discussed above, however, because the WET testing require-
ments were added to the permit to ensure that GE’s effluent meets State water
quality standards, and because the State’s certification letter indicates that the permit,
as written, is necessary in order to comply with State law, we conclude that the
permit’s WET testing provisions are also “attributable to State certification.” Thus,
if GE wishes to challenge these provisions, it must do so through applicable State
procedures.

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CWM CHEMICAL SERVICES, INC., ET AL. A473

§ 124.55(e) and may not be reviewed in this forum. Review is there-
fore denied.”

So ordered.

7The Region also objected to review of the disputed permit conditions on other
grounds. Specifically, the Region argued that GE failed to raise the issue of whether
mixing zones should be considered in establishing pH limits for storm water in its
comments on the draft permit. Region’s Response at 8. The Region also argued that
petitioner failed to propose alternative limits for pH and therefore failed to comply
with the requirements of 40 C.F.R. §§124.73-124.76. Id. at 9. Because we conclude
that the disputed conditions are attributable to State certification, however, we do
not reach these issues.

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