City of Jacksonville, District II Wastewater Treatment Plant

Plain-English summary

The City of Jacksonville sought review of EPA Region IV's denial of an evidentiary hearing concerning biomonitoring conditions in the proposed NPDES permit for its District II wastewater treatment plant. The permit required toxicity testing and treated a single test showing lethality to more than 50 percent of the test organisms as a permit violation. The Environmental Appeals Board held that the City's request did not raise a genuine issue of material fact and that Florida's water quality standards did not allow a failed toxicity test to be disregarded until a second test confirmed it. The Board therefore denied the petition for review and left the single-excursion requirement in place.

Decision snapshot

• Cited authorities: 33 U.S.C. § 1311(b)(1)(C); 40 C.F.R. §§ 122.41(a), 124.74(b)(1), and 124.91(a); Florida Administrative Code Rules 17-302.200, 17-302.500, and 17-4.244(3)(a)
• Outcome: Review was denied, and the single-excursion biomonitoring requirement remained in the NPDES permit.
• Key point: A properly performed toxicity test that shows a permit limit was exceeded can constitute a violation without a second confirming test.

Full text (EPA EAB public release)

15 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
IN THE MATTER OF CITY OF JACKSONVILLE,
DISTRICT II WASTEWATER TREATMENT PLANT
NPDES Appeal No. 91-19
ORDER DENYING REVIEW
Decided August 4, 1992
Syllabus

The City of Jacksonville (Florida) seeks review of U.S. EPA Region IV's denial
of an evidentiary hearing request on the biomonitoring conditions in a proposed final
NPDES permit for the City’s District II Wastewater Treatment Plant, a publicly
owned treatment works. The biomonitoring conditions were included in the permit
to ensure compliance with Florida’s narrative whole effluent toxicity standard at Rule
17-302.500, F.A.C. and with Florida’s numerical whole effluent toxicity standard for
mixing zones at Rule 17-4.244(3)(a). The permit provides that any excursion of the
effluent over the permit’s whole effluent toxicity limits will constitute an enforceable
violation of the permit. The City seeks review of the denial of its request for an
evidentiary hearing on the propriety of this “single excursion” requirement.

Held: The City’s evidentiary hearing request did not raise a genuine issue of
material fact. The Regional Administrator, therefore, properly denied an evidentiary
hearing request on the issue. In addition, we conclude that, as a matter of law,
the Region properly included the “single excursion” requirement in the permit. Review
of the City’s petition is therefore denied.

Before Environmental Appeals Judges Ronald L. McCallum
and Edward E. Reich. Environmental Appeals Judge Nancy
B. Firestone did not participate in this Decision.

Opinion of the Board by Judge McCallum:

The City of Jacksonville (the “City”) seeks review of U.S. EPA
Region IV’s denial of an evidentiary hearing request on certain provi-
sions in a proposed final NPDES permit for the City’s District II
Wastewater Treatment Plant, a publicly owned treatment works
(POTW). The permit contains biomonitoring conditions that set whole
effluent toxicity limits and require the petitioner to conduct periodic
tests in which two aquatic species are exposed to the facility's dis-
charge to detect acute toxicity. The biomonitoring conditions were
included in the permit to ensure compliance with Florida’s narrative

VOLUME 4
CITY OF JACKSONVILLE, DISTRICT II WASTEWATER 151
TREATMENT PLANT
whole effluent toxicity standard at Rule 17-302.500, F.A.C. and with
Florida’s numerical whole effluent toxicity standard at Rule 17-
4.244(3)(a). The permit provides that any excursion of the effluent
beyond the whole effluent toxicity limits will constitute an enforceable
violation of the permit. The City now seeks review of the denial
of its request for an evidentiary hearing on the propriety of this
“single excursion” requirement. As requested by the Agency’s Chief
Judicial Officer, the Region filed a response to the City’s petition
for review.1 For the reasons set forth below, we conclude that the
City’s evidentiary hearing request did not raise a genuine issue of
material fact and that the Regional Administrator, therefore, properly
denied an evidentiary hearing request on the issue. In addition, we
conclude that, as a matter of law, the Region properly included the
“single excursion” requirement in the permit. Review of the City’s
petition is therefore denied.
I. BACKGROUND
The POTW whose permit is at issue is a 10.0 MGD conventional
mix wastewater treatment facility with discharge of reclaimed water
to the St. John’s River. On July 31, 1989, the Region issued a draft
permit for the facility, which provided that “biomonitoring require-
ments for this facility are being reserved pending a meeting between
the permittee and EPA.” On August 21, 1989, a revised permit was
issued containing the permit conditions at issue in this appeal. On
September 21, 1989, the City commented on the revised language,
objecting to the biomonitoring provisions and stating as follows:
The City cannot accept any provision in which a
single violation of a biomonitoring test will constitu-
ent [sic] a violation of the NPDES permit. Therefore,
the City strongly objects to any such inclusion.
Letter dated September 21, 1989, from Charles L. Logue, City of
Jacksonville, to Diane Brown, Environmental Protection Agency (Peti-
tion for Review, Exhibit 6).

On September 25, 1989, the State of Florida issued its certifi-
cation of the revised permit, including the biomonitoring provisions

1At that time, the Agency’s Judicial Officers held 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,
including this case, were transferred to the Environmental Appeals Board. See 57
Fed. Reg. 5321 (Feb. 13, 1992).

VOLUME 4
152 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
for outfall 001 of the POTW. In the certification letter, the State
makes the following statement:
The Department has the following more stringent
limitations at outfall 001 than the draft NPDES per-
mit. The State permit requires that the Total Resid-
ual Chlorine limit of 0.01 mg/l be achieved by March
14, 1991.
Petition for Review, Exhibit 7. The certification letter states that
the permit, with the addition described in the quotation above, will
be in compliance with State requirements.

On September 27, 1989, the Region issued the final permit, with
the challenged biomonitoring language. On November 1, 1989, the
City filed a request for an evidentiary hearing. Among the issues
raised in the request was the following:
Whether it is appropriate to impose the permit limi-
tation of toxicity testing and the single failure as
a violation subject to full enforcement in light of
the recognized variability in toxicity testing.
Petition for Review, Exhibit 9. The evidentiary hearing request was
denied in its entirety, and the City appealed only the denial of the
“single excursion” issue.

II. DISCUSSION

Under the rules governing this proceeding, there is no appeal
as of right from the Regional Administrator’s decision. Ordinarily
a petition for review is not granted unless the Regional Administra-
tor’s decision is clearly erroneous or involves an exercise of discretion
or policy that is important, and should therefore be reviewed by
the Administrator. See, e.g., IT Corporation (Ascension Parish Louisi-
ana), NPDES Appeal No. 83-2 (July 21, 1983); 44 Fed. Reg. 32887
(June 7, 1979) (Preamble to 40 CFR Part 124). The petitioner has
the burden of demonstrating that review should be granted. See 40
CFR § 124.91(a).

Florida has a narrative whole effluent toxicity standard, which
provides as follows:
All surface waters of the State shall at all places
and at all times be free from:
VOLUME 4
CITY OF JACKSONVILLE, DISTRICT II WASTEWATER 153
TREATMENT PLANT
(1) * * * discharges which, alone or in combination
with other substances or in combination with other
components of discharges * * *:

(d) Are acutely toxic * * *2
Rule 17-302.500, F.A.C. (formerly Rule 17-3.051, F.A.C.). Florida
also has a numerical whole effluent toxicity standard applicable to
mixing zones,3 which provides as follows:
(a) Waters within mixing zones shall not be degraded
below the minimum standards prescribed for all wa-
ters at all times in Rule 17-3.051, F.A.C. In deter-
mining compliance with the provisions of 17-
3.051(1), F.A.C., the average concentration of the
wastes in the mixing zone shall be measured or com-
puted using scientific techniques approved by the De-
partment; provided that, the maximum concentration
of wastes in the mixing zone shall not exceed the
amount lethal to 50% of the test organisms in 96
hours (96-hr. LC50) for a species significant to the
2 Acute toxicity is defined in the Florida Administrative Code as follows:
(1) “Acute Toxicity” shall mean the presence of one or more sub-
stances or characteristics or components of substances in amounts
which:
(a) are greater than one-third (1/3) of the amount lethal to 50%
of the test organisms in 96 hours (96-hr LC50) where the 96-
hr LC50 is the lowest value which has been determined for a
species significant to the indigenous aquatic community; or
(b) may reasonably be expected, based upon evaluation by
generally accepted scientific methods, to produce effects equal
to those of the concentration of the substance specified in (a) above.
Rule 17-302.200, F.A.C.
3Paragraph (1)(a) of Rule 17-4.244, F.A.C., describes mixing zones as follows:
The Department may allow the water quality adjacent to a point
of discharge to be degraded to the extent that only the minimum
conditions described in subsection 17-3.051(1), Florida Administra-
tive Code, apply within a limited, defined region known as the
mixing zone. Under the circumstances defined elsewhere in this
section, a mixing zone may be allowed to provide an opportunity
for mixing and thus to reduce the costs of treatment. However, no
mixing zone or combination of mixing zones shall be allowed to
significantly impair any of the designated uses of the receiving body
of water.

VOLUME 4
154 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
indigenous aquatic community, except as provided
in paragraph (b) or (c) below.

Rule 17-4.244(3)(a), F.A.C.

Under CWA §301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C), an NPDES
permit for a POTW is required to contain, in addition to secondary
treatment requirements, any more stringent limitations necessary to
ensure compliance with State water quality standards. In this case,
the Region concluded that permit limitations would be necessary to
ensure compliance with the above-quoted Florida water quality stand-
ards because, out of ten biomonitoring tests conducted on the effluent
of the City’s facility from October of 1985 to March of 1988, six
tests demonstrated toxicity in the effluent. Region’s Response to Peti-
tion for Review, at 3-4.4 To ensure compliance with the above-quoted
Florida standards, therefore, the Region devised the following limita-
tions, or test procedures, for inclusion in the permit:
The effluent (100%) shall not be lethal to more than
50% of appropriate test organisms. The testing for
this requirement must conform with Part IV of this
permit. Lethality to more than 50% of the test orga-
nisms in a test of 48 hours duration will constitute
a violation of Florida Administrative Code Section
17-4.244(4) and the terms of this permit.
Permit, Part I(A)(9) (emphasis added).5
If lethality (less than 50% survival of test organisms
in 100% effluent) is found in any test of final effluent,
this will constitute a violation of this permit. The
permittee will then be subject to the enforcement
provisions of the Clean Water Act. In the event a
violation of toxicity limits results in an enforcement
action, any different or more stringent monitoring
requirements imposed in that enforcement action
shall apply in lieu of the requirements of this permit

4The City does not dispute the Region’s conclusion that some permit limitation
is necessary to ensure compliance with Rule 17-4.244(3)(a).

5The quotation accompanying this footnote refers to Rule 17-4.244(4), F.A.C. Since
the draft permit was sent out for public comment, Rule 17-4.244 has been amended,
so that the provision cited in the permit now appears in slightly amended form
at Rule 17-4.244(3)(a), F.A.C., which is the Florida provision the parties have referred
to in their briefs. Thus, the permit’s reference to Rule 17-4.244(4) appears to be
in error.

VOLUME 4
CITY OF JACKSONVILLE, DISTRICT II WASTEWATER 155
TREATMENT PLANT
condition for whatever period of time is specified by
EPA in the enforcement action.
Permit, Part IV(2) (emphasis added).

Despite the fact that the toxicity testing procedures in the above
quoted provisions differ in certain obvious respects from the toxicity
standard itself (for example, the duration of the permit procedure
is set at 48 hours, whereas the standard calls for a 96-hour duration),
the City nowhere claims that the testing procedures in the permit
do not appropriately implement the Florida toxicity standard. Rather,
the City says that the “single excursion” requirement is inappropriate
because there is “variability in the test results.” Petition for Review,
at 7.6 It is not clear, however, what the City means by “variability
in the test results,” since the City also expressly acknowledges that it
is not “challenging the reliability of the toxicity testing procedures.”
Id. It is difficult to see why variability of test results would be a
problem if the reliability of the testing procedures is unaffected.7
At any rate, what is clear is that the City believes that a determina-
tion of non-compliance should only be made on the basis of more
than one failed toxicity test. That position must be rejected as a
matter of law. Rule 17-4.244(3)(a), F.A.C. provides that the maximum
concentration of wastes in the mixing zone shall not fail the toxicity
test specified in the standard. Nothing in the language of the stand-
ard suggests that a particular waste concentration may fail an other-
wise applicable toxicity test one or more times without violating the
standard. The City has not offered any reasonable basis for reading
such an exception into the Florida standard. This conclusion is no
less reasonable in light of the City’s assertions about the variability
of test results. The State of Florida obviously believed that toxicity
testing has an acceptable range of variability, and that is what is
determinative. Under CWA §301(b)(1)(C), the Region is without au-
thority to inquire into the scientific basis of a State’s water quality

6The City contends that “other water quality parameter limitations included in
an NPDES permit are stated in tiered increments which reflect the inherent variability
of those parameters.” Petition for Review, at 6. The City, however, neither explains
what it means by “tiered increments,” nor specifically identifies the other limitations
to which it refers, nor explains why the biomonitoring conditions in the permit should
be treated in a similar fashion.

7EPA’s Technical Support Document for Water Quality-Based Toxics Control, at
11 (March 1991) acknowledges that “toxicity test procedures exhibit variability,” but it
nevertheless concludes that toxicity testing, when performed properly, is reliable
enough to evaluate compliance with a permit. The Technical Support Document cites
studies in support of this conclusion.

VOLUME 4
156 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
standard. See In re Miami-Dade Water and Sewer Authority Depart-
ment, NPDES Appeal No. 91-14, at 12 (EAB, July 27, 1992).

The City also argues that the “single excursion” requirement
is inappropriate because of variability in the toxicity of the effluent.
We assume that, by variability in the toxicity of the effluent, the City
means that at one time the effluent might be acutely toxic and at
another time it might not be. Assuming that the City is right, we fail
to see the significance of such variability. Both of the Florida toxicity
standards under review here provide that surface waters of the State
shall be free from acutely toxic discharges “at all times.” Rule
17-302.500, F.A.C. (formerly 17-3.051, F.A.C.) and Rule 17-4.244(3)(a),
F.A.C. To determine compliance with Florida’s toxicity standards,
therefore, the only relevant question (assuming the test is performed
properly) is whether the concentration of wastes in the mixing zone
exceeded the amount lethal to 50% of the test organisms in 96 hours
for a species significant to the indigenous aquatic community. If the
concentration did exceed that amount even for a short time, then a
violation of the toxicity standards occurred. It is irrelevant that the
toxicity of the effluent, in a later test, might not exceed that amount.
As the Region points out:
It is not possible to verify results with a subsequent
biomonitoring test whether a new sample or a split
sample which has been stored (and therefore contains
fewer volatiles) is used. For this reason, any additional
monitoring merely establishes continuing compliance
status, not verification of the original violation.
Region’s Response at 13. Under 40 CFR §122.41(a), one violation
of any condition of a permit, including whole effluent toxicity limita-
tions, constitutes a violation of the permit and is subject to enforcement.8

Finally, the City argues that the State of Florida has interpreted
its toxicity standards as being less stringent than the Region has
interpreted them to be. In support of this assertion, the City cites
a letter dated March 3, 1989, from the Northeast District (the “Dis-

8 40 CFR §122.41(a) provides as follows:
Duty to Comply. The permittee must comply with all conditions
of this permit. Any permit noncompliance constitutes a violation
of the Clean Water Act and is grounds for enforcement action;
for permit termination, revocation and reissuance, or modification;
or denial of a permit renewal application.

VOLUME 4
CITY OF JACKSONVILLE, DISTRICT II WASTEWATER 157
TREATMENT PLANT
trict”) of the Florida Department of Environmental Regulation (the
“Department”) to Patrick T. Karney, P.E., of the City’s Water Services
Division. The letter reads in pertinent part as follows:
This will respond to your March 2 request for infor-
mation about the District policy on bioassays.
The District does not consider the first failed bio-
assay a violation, but does require that a second
bioassay be done within a reasonable period of time.
A second, confirming failed bioassay is considered
an enforceable violation. The facility is then required
to do a toxic study to identify the toxics, and develop
strategies for removal or treatment of the agents
prior to discharge.
Petition for Review, Exhibit 2.

We are not persuaded that the position expressed in the foregoing
letter represents the State’s interpretation of its toxicity standards.
First, we note that the letter refers to “the District policy,” suggesting
that the letter does not necessarily reflect the position of the entire
Florida Department of Environmental Regulation. Second, we note that
in the letter, the District refers to its position as a “policy,” and not
as an “interpretation” of the Florida toxicity standards. In fact, the
letter does not even mention or cite those standards. Thus, there is
nothing in the letter to suggest that the District believes its “policy” is
dictated by the language of the regulations. In light of these considera-
tions, we are of the view that the position expressed in the District’s
letter reflects an exercise of prosecutorial discretion rather than an
interpretation dictated by the language of the Florida toxicity
standards. For a reason not identified in the letter, the District has
chosen as a matter of prosecutorial discretion not to view the first
failed bioassay as a violation. Unlike the District, however, the Region
has no discretion to relax the requirements of a State water quality
standard when it writes a permit. See CWA §301(b)(1)(C), 33 U.S.C.
§ 1311(b)(1)(C).

Even if the position expressed in the letter cited by the City had also
been expressed in the State’s certification letter, the result would be
the same. The Region’s duty under CWA §401 to defer to considerations
of State law is intended to prevent EPA from relaxing any requirements,
limitations, or conditions imposed by State law. See In re Pratt & Whitney
Aircraft Group, United Technologies Corporation, NPDES Appeal No. 81-2,
at 15-22 (March 18, 1983). In this case, we agree with the Region’s
conclusion that the “single excursion” requirement of the permit is
necessary to ensure compliance with Florida’s toxicity standards. We
conclude, therefore, that despite the letter cited by the City, the Region
has an obligation under CWA §301(b)(1)(C) to include the “single
excursion” requirement in the permit.9

For all the foregoing reasons, we conclude that the resolution of the
issue raised in the City’s evidentiary hearing request turns on the
interpretation of a statute and is therefore a legal issue involving no
genuine issues of material fact. We conclude, therefore, that the
Regional Administrator properly denied an evidentiary hearing request
on the issue. See 40 CFR § 124.74(b)(1) (Regional Administrator
required to deny evidentiary request that contains legal issues but no
factual issues). We also conclude as a matter of law that the “single
excursion” requirement in the permit is dictated by the language of Rule
17-4.244(3)(a), F.A.C. Accordingly, review of the City’s petition is hereby
denied.

So ordered.

9 If the Department believes that the Florida toxicity provisions at issue here
are too stringent, it should take whatever steps are necessary and appropriate to
have the provisions amended.

VOLUME 4