Boise Cascade Corporation

Plain-English summary

Boise Cascade Corporation sought review of EPA Region VI's renewal of an NPDES permit for its pulp and paper mill in DeRidder, Louisiana. The challenge covered pH limits at two outfalls, dissolved oxygen requirements, and quarterly chronic biomonitoring. The Environmental Appeals Board remanded several factual and related legal issues for evidentiary proceedings, including whether the pH limit at outfall 001 could be relaxed, whether the dissolved oxygen conditions had a reasonable potential basis, and whether the 24-hour restart restriction was authorized. It also remanded the outfall 002 pH issue for reconsideration because the region had improperly required substantiating data during the public-comment period. The Board denied review of the remaining issues and treated the existing biomonitoring hearing grant as covering the relief Boise sought.

Decision snapshot

• Cited authorities: Clean Water Act §§ 301, 401, and 402; 40 C.F.R. §§ 122.44, 122.45, 122.62, 124.13, 124.74 through 124.76, 124.91, 125.3, and 430.01.
• Outcome: Review was denied in part, while specified pH, dissolved oxygen, and related evidentiary issues were remanded to the region.
• Key point: A permit appeal may require an evidentiary hearing when material factual issues support a possible change in permit limits, and a commenter need not submit substantiating evidence unless the Regional Administrator directs it.

Full text (EPA EAB public release)

A474 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF BOISE CASCADE CORPORATION
NPDES Appeal No. 91-20

ORDER DENYING REVIEW IN PART AND REMANDING IN
PART

Decided January 15, 1993

Syllabus

Boise Cascade Corporation seeks review of the denial of its request for an evi-
dentiary hearing on certain issues arising out of U.S. EPA Region VI’s renewal of
Boise’s NPDES permit for Boise’s DeRidder, Louisiana pulp and paper mill. Boise
appeals the denial of issues pertaining to the pH effluent limit for outfall 001, the
pH effluent limit for outfall 002, the permit’s dissolved oxygen requirements, and
the permit’s quarterly chronic biomonitoring requirement.

Held: With respect to outfall 001, if a pH range of 5.0 to 9.0 represents BCT
for the groundwood-chemi-mechanical and groundwood-thermo-mechanical point source
subcategories and if discharges falling within those two subcategories now make up
a substantially larger percentage of the effluent coming out of outfall 001 than they
did when the previous permit was issued, the anti-backsliding rule does not prevent
the Region from relaxing the stringency of the pH effluent limitation for outfall 001.
Accordingly, the following material issues of fact are being remanded to the Region
for an evidentiary hearing: (1) whether discharges at Boise’s facility falling into the
groundwood-chemi-mechanical and groundwood-thermo-mechanical subcategories now
make up a substantially larger percentage of the effluent coming out of outfall 001
than they did when the previous permit was issued; (2) whether a pH range of
5.0 to 9.0 standard units represents BCT for the groundwood-chemi-mechanical and
groundwood-thermo-mechanical subcategories; and (3) if the first two issues are re-
solved in favor of Boise, what pH limitation for outfall 001 would accurately reflect
the differing BCT levels of discharges coming out of outfall 001. With respect to
the pH effluent limitation for outfall 002, the Region erred when it denied an evi-
dentiary hearing on the ground that substantiating data had not been submitted
to the Region during the comment period. Under the rules governing the permitting
process, a commenter need not submit evidence substantiating a comment unless
the Regional Administrator specifically directs the petitioner to do so. With respect
to the dissolved oxygen requirements in the permit, the following material issue of
fact is remanded to the Region for an evidentiary hearing: whether there is a reason-
able potential that discharges from the mill will cause or contribute to a violation
of Louisiana’s water quality standard for dissolved oxygen. Boise’s evidentiary hearing
request also raised the following legal issues that are being remanded because they
are intertwined with the material issue of fact mentioned above relating to the permit’s
dissolved oxygen requirements: (1) whether Louisiana’s dissolved oxygen standard au-
thorizes the Region to require that Boise cease discharging whenever the dissolved

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BOISE CASCADE CORPORATION 475

oxygen concentration in the receiving waters falls below 5.0 mg/l at any of the specified
monitoring stations; and (2) whether 40 CFR §430.01(c) either authorizes or compels
the Region to include in the permit’s effluent limitation for dissolved oxygen the
requirement that the mill not resume discharging until the dissolved oxygen concentra-
tion in the receiving waters has been above the specified minimum for 24 hours.
As for the other issues raised in Boise’s petition, review is denied.

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

Opinion of the Board by Judge Reich:

I. BACKGROUND

Boise Cascade Corporation (“Boise”) seeks review of the denial
of its request for an evidentiary hearing on certain issues arising
out of U.S. EPA Region VI’s renewal of Boise’s National Pollutant
Discharge Elimination System (NPDES) permit. The permit is for
Boise’s DeRidder, Louisiana pulp and paper mill, which discharges
into Cypress Creek and Bayou Anacoco in segment number 110507
of the Sabine River Basin.1 Boise appeals the denial of issues pertain-
ing to the pH effluent limits for two outfalls at the facility, the
permit’s dissolved oxygen requirements, and the permit’s quarterly
chronic biomonitoring requirement. For the reasons set forth below,
the Environmental Appeals Board is remanding several issues for
an evidentiary hearing and denying review with respect to the rest.

The evidentiary hearing request under consideration was filed
by Boise on April 20, 1991. On August 13, 1991, the Region responded
to Boise’s request, granting an evidentiary hearing for some of the
issues, and denying a hearing for other issues. The Region’s justifica-
tion for denying a hearing with respect to some of the issues was
that the issues had not been raised during the comment period even
though they were reasonably ascertainable at that time. On Septem-
ber 12, 1991, Boise filed a petition for review with the Agency’s
Chief Judicial Officer, challenging the Regional Administrator’s par-
tial denial of its evidentiary hearing request.2 On October 22, 1991,

1Under the Clean Water Act, discharges into waters of the United States by
point sources, like Boise’s pulp and paper mill, must be permitted to be lawful. 33
U.S.C. §1311. The National Pollutant Discharge Elimination System is the principal
permitting program under the Clean Water Act. 33 U.S.C. § 1342.

2At 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).

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476 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

however, the Region issued a supplemental response to Boise’s evi-
dentiary hearing request, reversing its position on many of the issues
that had been denied because they had not been raised during the
comment period. The Region conceded that such issues had been
raised during the comment period. It therefore reconsidered the evi-
dentiary hearing request on the merits, granting a hearing with
respect to many of the issues and denying a hearing with respect
to others. In light of these changes in the Region’s position, Boise
filed the amended petition for review that is now under consideration
by this Board.

II. DISCUSSION

Under the rules governing this proceeding, there is no appeal
as of right from the denial of an evidentiary hearing request. Ordi-
narily a petition for review is not granted unless the denial is clearly
erroneous or involves an exercise of discretion or policy that is impor-
tant and, therefore, should be reviewed. See 40 CFR § 124.91(a); In
re Puerto Rico Sun Oil Company, Inc., NPDES Appeal No. 92-20,
slip op. at 5 (EAB, Oct. 23, 1992); In re Miami-Dade Water and
Sewer Authority Department, NPDES Appeal No. 91-14, slip op. at
5 (EAB, July 27, 1992). The petitioner has the burden of demonstrat-
ing that review should be granted. Id.

A. The pH Limits for Outfall 001

The effluent flowing out of outfall 001 is composed of discharges
from the following five point source subcategories within the Pulp,
Paper, and Paperboard Point Source Category (40 CFR Part 430):
unbleached kraft (subpart A), paperboard from wastepaper (subpart
E), BCT bleached kraft (subpart H), groundwood-chemi-mechanical
(subpart L), and groundwood-thermo-mechanical (subpart M). For the
unbleached kraft and paperboard from wastepaper subcategories, the
Agency has promulgated national effluent guidelines that establish
a pH range of 6.0 to 9.0 as achievable by application of the best
conventional pollutant control technology (“BCT”). 40 CFR §§ 430.13,
430.53. For the BCT bleached kraft subcategory, national effluent
guidelines establish a pH range of 5.0 to 9.0 as BCT. 40 CFR § 430.83.
The Agency has not yet promulgated national effluent guidelines
setting pH levels representing BCT for the groundwood-chemi-me-
chanical, and groundwood-thermo-mechanical subcategories. See
§§ 430.123, 430.133. In the absence of guidelines establishing pH lev-
els as BCT for those two categories, the Region was required to
determine BCT limitations on a case-by-case basis based on the per-
mit writer’s best professional judgment (BPJ). 40 CFR § 125.3(c)(2).

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Part I, section A of the NPDES permit imposes pH effluent
limits of 6.0 to 9.0 standard units at outfall 001. Boise contends
that the pH effluent limits for outfall 001 should be 5.0 to 9.0 stand-
ard units, a less stringent standard, or in the alternative that the
low end of the pH range should be set somewhere between 5.0 to
6.0 standard units, depending on the relative proportion of the efflu-
ent attributable to the various subcategories. Boise asserts that while
the effluent coming out of outfall 001 still contains discharges from
production processes for which a pH range of 6.0 to 9.0 represents
BCT, a much larger proportion of the effluent is now composed of
discharges from production processes falling into the groundwood-
chemi-mechanical and groundwood-thermo-mechanical subcategories
than was the case when the previous permit was issued. Boise argues
that, for those two subcategories, a pH range of 5.0 to 9.0 represents
BCT. In support of its position, Boise notes that for those two
subcategories, the Agency has promulgated national effluent guide-
lines setting a pH range of 5.0 to 9.0 as achievable by application
of the “best practicable control technology currently available”
(“BPT”). 40 CFR §§ 430.122, 430.182. Boise then asserts that BCT
and BPT for a given pollutant and a given production process are
usually identical. Boise argues, therefore, that until EPA establishes
national effluent guidelines establishing pH levels representing BCT
for those two processes, BCT should be deemed to be identical to
BPT, in this case 5.0 to 9.0. Boise concludes that because a larger
part of the effluent coming out of outfall 001 is now attributable
to production processes for which a pH range of 5.0 to 9.0 standard
units represents BCT, the lower end of the pH range for outfall
001 should be set either at 5.0 or, in the alternative, at a production-
proportioned level somewhere between 5.0 and 6.0 standard units.

The Region responds that Boise’s previous permit contained pH
limits of 6.0 to 9.0 standard units and that the Agency’s “anti-back-
sliding” rule precludes the Region from replacing the old standard
with a less stringent new standard. That policy provides as follows:

Reissued permits. (1) Except as provided in para-
graph (1)(2) of this section when a permit is renewed
or reissued, interim effluent limitations, standards
or conditions must be at least as stringent as the
final effluent limitations, standards, or conditions in
the previous permit (unless the circumstances on
which the previous permit was based have materially
and substantially changed since the time the permit
was issued and would constitute cause for permit

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478 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

modification or revocation and reissuance under
§ 122.62).

40 CFR §122.44(1)(1). Section 122.62, mentioned in the provision
quoted above, provides that the following constitutes cause for modi-
fication of a permit:

There are material and substantial alterations or ad-
ditions to the permitted facility or activity (including
a change or changes in their permittee’s sludge use
or disposal practice) which occurred after permit is-
suance which justify the application of permit condi-
tions that are different or absent in the existing per-
mit.

40 CFR § 122.62(a)(1).

Boise contends that the anti-backsliding policy should not be
applied in this case because a larger percentage of the effluent is
now made up of discharges from production processes for which a
pH range of 5.0 to 9.0 standard units represents BCT. Boise argues
that this change in the composition of the effluent is a material
and substantial alteration to the permitted activity and therefore
falls within the exception to the anti-backsliding rule.3

Boise’s argument hinges on the following two assertions: (1) a
pH range of 5.0 to 9.0 standard units represents BCT for the
groundwood-chemi-mechanical and groundwood-thermo-mechanical
subcategories, and (2) discharges in those two subcategories now
make up a substantially larger proportion of the effluent coming
out of outfall 001 than they did when the previous permit was issued.
These two assertions raise issues of fact.4 An evidentiary hearing,

3 Boise does not actually invoke 40 CFR § 122.62(a\1), but cites instead 40 CFR
§ 122.44(l)(2)(i)(A), which has language similar to that in 40 CFR § 122.62(a)(1) but
which does not appear to be applicable to Boise. Application of the provision cited
by Boise is triggered by the publication of national effluent guidelines for the chemical
and subcategory in question after the previous permit was issued. In this case, no
national effluent guidelines relating to pH in the pertinent subcategories were pub-
lished after the issuance of the previous permit.

4Boise suggests that the first issue should be resolved in its favor as a matter
of law. Boise takes the position that the Region may presume that a pH range
of 5.0 to 9.0 standard units represents BCT for the groundwood-chemi-mechanical
and groundwood-thermo-mechanical subcategories because the national effluent guide-
lines establish a pH range of 5.0 to 9.0 standard units as achievable by application
of the best practicable control technology currently available (BPT) for those two
subcategories. Boise argues that if national effluent guidelines have established BPT

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BOISE CASCADE CORPORATION 479

however, is only appropriate for material issues of fact. 40 CFR
§ 124.75(a)(1). To determine whether these issues are material issues
of fact, the following threshold issue must be resolved: assuming,
as Boise contends, that a pH range of 5.0 to 9.0 represents BCT
for the groundwood-chemi-mechanical and groundwood-thermo-me-
chanical subcategories, and assuming that discharges in those two
subcategories now make up a substantially larger percentage of the
effluent coming out of outfall 001 than they did when the previous
permit was issued, does the anti-backsliding rule still preclude the
Region as a matter of law from altering the effluent limitations for
pH at outfall 001?

For the following reasons, we believe that if discharges from
processes for which a pH range of 5.0 to 9.0 standard units represents
BCT now make up a significantly larger percentage of the effluent
coming out of outfall 001, then relaxing the pH limits for that outfall
would not violate the anti-backsliding prohibition. When the Agency
imposes technology-based effluent limitations, it must apply any na-
tional effluent guidelines applicable to the production processes in-
volved. 40 CFR § 125.3(c)(1). Thus, if the discharge from a particular
outfall is attributable to a production process for which national efflu-
ent guidelines set a pH range of 6.0 to 9.0 as BCT, and if the
facility stops that production process and starts a different production
process falling into a different point source subcategory for which
national effluent guidelines set a pH range of 5.0 to 9.0 as BCT,
then clearly a substantial alteration in the permitted activity has
taken place for purposes of the modification provisions at Section
122.62. The reason is that, if the discharge from the outfall had
been attributable to the second production process when the permit
was first issued, the Region would have been required to impose

but not BCT for a given pollutant in a given subcategory, then until guidelines are
published establishing BCT, the Agency may presume that BCT is equal to BPT
when making a best professional judgment determination. We disagree. While BCT
and BPT for a given pollutant in a given subcategory are frequently set at the same
level, they cannot be presumed equal in all cases. This conclusion is supported by
the regulations governing best professional judgment determinations at 40 CFR
§ 125.3(d), which set out factors that must be considered by the Region when it
determines the appropriate BCT and BPT levels for a given pollutant in a given
subcategory. The factors to be considered in a BPT determination and the factors
to be considered in a BCT determination overlap to a great extent, but there are
important differences in the factors that could result in differing BCT and BPT levels.
In particular, the cost/benefit analysis to be performed in a BPT determination is
different from the cost/benefit analysis that must be performed in a BCT determina-
tion. Compare 40 CFR § 125.3(d)(1(i) (for BPT requirements) with 40 CFR § 125.3(d)(2)
(i) and Gi) (for BCT requirements). See American Paper Institute v. Environmental
Protection Agency, 660 F.2d 954, 957, 960 n.14, 963 (4th Cir. 1981) (BCT is at least
equal to BPT, but in some cases is more stringent than BPT).

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480 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

pH levels of 5.0 to 9.0 for the outfall. This analysis would also
apply in a case where BCT levels for one or both of the production
processes are based on the permit writer’s best professional judgment.
See 40 CFR §125.03(c)(2) (where no national effluent guidelines
apply, must set technology-based effluent limitations on a case-by-
case basis applying specified factors). By the same reasoning, it is
also true that when the constituent discharges making up the effluent
coming out of a particular outfall each have different BCT limits
for pH and there has been a significant change in the relative propor-
tions of those discharges since the previous permit was issued, a
material and substantial alteration of the permitted activity occurs,
justifying modification under Section 122.62(a)(2) and triggering the
exception to the anti-backsliding rule.5 In that event, the Region
would not only be free to alter the effluent limitation under the
exception to the anti-backsliding rule, but also would be required
to do so because the reasons justifying a modification under Section
122.62(a)(2) would also justify an adjustment of the limitation when
the permit is renewed.

Thus, assuming a pH range of 5.0 to 9.0 represents BCT for
the groundwood-chemi-mechanical and groundwood-thermo-mechani-
cal subcategories and assuming discharges falling within those two
subcategories now make up a substantially larger percentage of the
effluent flowing from outfall 001, then an appropriate adjustment
to the pH limits for outfall 001 is not barred by the anti-backsliding
rule and is in fact required. We conclude, therefore, that the two
factual issues identified above are material issues of fact not pre-
cluded from consideration under the anti-backsliding rule, which
should be resolved at an evidentiary hearing. If both of these factual
issues are resolved in Boise’s favor, a third factual issue must be
resolved at the evidentiary hearing, as follows: what alteration of
the pH limitation would be appropriate given the change in the
composition of the effluent since the previous permit was issued?

5Boise argues in its amended petition that the anti-backsliding rule does not
apply in this case because the “Mill’s groundwood-chemi-mechanical and groundwood-
thermo-mechanical production has increased substantially.” In context, we have read
this statement to mean that discharges from those two processes now make up a
substantially larger percentage of the effluent coming out of outfall 001. If we have
misread Boise’s argument, i.e., if production from those two subcategories constitutes
essentially the same percentage of the total effluent coming out of outfall 001 as
it did when the first permit was issued, then Boise’s argument must be rejected.
A simple increase in the total effluent coming out of outfall 001 without a change
in the relative proportions of the constituent discharges would not constitute a material
and substantial alteration of the permitted activity justifying an exception to the
anti-backsliding rule, at least with respect to the pH limitation for outfall 001.

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BOISE CASCADE CORPORATION 481

We are remanding these three issues of fact to the Regional Adminis-
trator so that an evidentiary hearing on them may be scheduled.

B. The pH Limits for Outfall 002

Part I, Section A, of the permit imposes pH effluent limits of
6.0 to 9.0 standard units at outfall 002. These limits were established
on the basis of the permit writer’s best professional judgment as
to the pH levels representing BCT. The effluent coming out of outfall
002 apparently does not fall within a particular point source category.
The Fact Sheet states only that “Outfall 002 represents noncontact
cooling water and stormwater runoff from the mill.” (AR 00152.)

Boise’s argument concerning the pH limitations for outfall 002
breaks down into two distinct issues. First, Boise argues that in
making the best professional judgment determination concerning the
pH limits that represent BCT for the outfall, the Region did not
consider the site-specific factors set out in 40 CFR §§ 125.3(c)(2),
125.3(d)(2), as it was required to do, but instead simply imposed
limitations that it had imposed on other, similarly situated industrial
facilities. This issue was not raised during the comment period even
though it was reasonably ascertainable at that time. Boise’s Com-
ments on Draft Permit, at 14 (AR 00316). Accordingly, it was not
preserved for an evidentiary hearing request. See 40 CFR § 124.76
(obligation to raise issues during public comment period if reasonably
ascertainable). Review of this issue is therefore denied.

The second issue raised by Boise in connection with outfall 002
is whether the effluent limitation for pH should be reduced to 5.0
to 9.0 because some of the water coming out of outfall 002 is acidic
storm water that drains into the facility from off-site. Boise argues
that 40 CFR §122.45(g) allows the Region, under specified cir-
cumstances, to adjust effluent limitations to account for pollutants
in the intake water. In its response to the petition for review, the
Region states that an evidentiary hearing was denied because sub-
stantiating data were not provided during the comment period. See
Response to Comments, at 17 (AR 00249); Region’s Response to Peti-
tion, at 4.6 Boise correctly points out, however, that it was not re-
quired to submit evidence during the comment period. Under the

The Region, in denying an evidentiary hearing on this issue, stated that “Boise
Cascade has not submitted any data to validate the existence of acidic off-site drainage
contributions to Outfall 002, in support of its proposed 5.0 to 9.0 standard units.”
Region’s Response to Boise’s Evidentiary Hearing Request, at 3 (AR 00049). While
this statement, by itself, is ambiguous as to whether the failure to submit validating
data relates to the comment period or the permit application itself, the response
to the petition focuses on the comment period.

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482 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

rules governing the permitting process, the petitioner need not submit
evidence substantiating a comment unless the Regional Administrator
specifically directs the petitioner to do so. 40 CFR § 124.13 (“Com-
menters shall make supporting materials not already included in
the administrative record available to EPA as directed by the Regional
Administrator.”) (emphasis added); 49 Fed. Reg. 38,042 (September
26, 1984) (“Generally supporting information would not be required
to be submitted during the comment period”). In this case, there
is nothing in the administrative record to suggest that the Regional
Administrator directed the petitioner to submit information during
the comment period. It is clear, then, that the petitioner did enough
during the comment period to preserve the issue for an evidentiary
hearing request. The Region erred, therefore, when it denied an evi-
dentiary hearing on the ground that substantiating data had not
been submitted to the Region during the comment period. We recog-
nize that there may in fact be an alternative, proper basis for denying
an evidentiary hearing on this issue. On the other hand, there may
be data in the record to support the conclusion that Boise has raised
a material issue of fact that should be resolved at an evidentiary
hearing. Based on the record before us, however, we are not in a
position to make such a determination, and in any event, such a
determination should be made in the first instance by the Regional
Administrator. We hold only that the Region’s stated justification
for denying an evidentiary hearing on this issue—that substantiating
information was not presented during the comment period—is an
improper basis for denying an evidentiary hearing request. Accord-
ingly, we are remanding this issue to the Regional Administrator.
On remand, the Regional Administrator should reconsider Boise’s
request in light of the foregoing discussion.

C. Dissolved Oxygen Concentrations

Part II, section G, of the NPDES permit requires discharges
from the mill to cease whenever dissolved oxygen measured at any
of the monitoring stations falls below 5.0 mg/l. The permit condition
also provides that once the mill has ceased operations because dis-
solved oxygen has dropped below the limit, the mill is prohibited
from recommencing discharges until 24 hours after dissolved oxygen
measured at all of the monitoring stations has risen to at least
5.0 mg/l. Part II, section H, of the permit requires Boise to monitor
the receiving stream for dissolved oxygen at specified locations up-
stream and downstream of the mill. These permit conditions were

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included in the permit because the Region believed they were nec-
essary to satisfy the following Louisiana water quality standard:7

3. Dissolved Oxygen

The following dissolved oxygen (DO) values represent
minimum criteria for the type of water specified.
Naturally occurring variations below the criterion
specified may occur for short periods. These vari-
ations reflect such natural phenomena as the reduc-
tion in photosynthetic activity and oxygen production
by plants during hours of darkness. However, no
waste discharge or human activity shall lower the

DO concentration below the specified minimum.

• • ok

a. Fresh Water

For a diversified population of warm-water biota in-
cluding sport fish, the DO concentration shall be at
or above 5 mg/l.

7The requirements in the permit relating to dissolved oxygen were in the draft
permit sent to the State of Louisiana for certification pursuant to Clean Water Act
§401(a), 33 U.S.C. §1341(a) and 40 CFR § 124.53(a). With the exception of one limita-
tion not relevant here, the State of Louisiana indicated in three certification letters
to the Region that it was “reasonable to expect that the discharge will comply with
applicable provisions of Section 301, 302, 303, 306 & 307 of the Water Pollution
Control Act as amended.” (AR 00223-28.) However, despite these certification letters,
the requirements in the permit relating to dissolved oxygen cannot be said to be
“attributable to State certification” within the meaning of 40 CFR § 124.55(e). That
section provides that if a permit requirement is “attributable to State certification,”
any challenge to it must be brought in State court and may not be brought in
a permit appeal before the Board. While the certification letters in this case indicate
that the dissolved oxygen requirements in the permit will meet Louisiana water quality
standards, the letters leave open the possibility that the requirements can be made
less stringent and still comply with Louisiana’s water quality standard. Because of
this ambiguity in the certification letters, the dissolved oxygen requirements cannot
be said to be “attributable to State certification.” See In re General Electric Company,
Hooksett, New Hampshire, NPDES Appeal No. 91-13, at 471 (EAB, January 5, 1993)
(a permit requirement is not “attributable to State certification” unless the certification
letter communicates the idea that the permit requirement cannot be made less strin-
gent and still comply with the State water quality standard); 44 Fed. Reg. 32,880
(June 7, 1979)(a State certification letter stating merely that a particular permit
condition will not violate a State water quality standard is ambiguous in that it
still leaves open the possibility that the condition could be made less stringent and
still comply with the water quality standard).

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484 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

La. Admin. Code 33:IX.1113.C.3.

DO limits may not be included in the permit unless such limits
are “necessary” to ensure compliance with Louisiana’s water quality
standard, i.e, unless discharges from the mill have a reasonable
potential for causing or contributing to a violation of that standard.
33 U.S.C. §1311(b)(1)(C); 40 CFR § 122.44(d)(1)(iii). In its evidentiary
hearing request, Boise raised the following two issues:

(1) Does the evidence show that dischargers other
than the DeRidder Mill or natural conditions or both
are responsible for reductions in instream dissolved
oxygen concentrations in Bayou Anacoco?

(2) Does the evidence show that discharges from the
DeRidder Mill do not necessarily have a significant
effect on instream dissolved oxygen concentrations
in Bayou Anacoco?

Request for an Evidentiary Hearing, at 34 (AR 00034). Boise’s evi-
dentiary hearing request on these two issues raises the issue of
the effect of its discharges. We read this as essentially raising the
issue of whether discharges from its mill have a reasonable potential
for causing or contributing to a violation of Louisiana’s DO standard.
Presumably, the Region has determined that Boise’s discharges do
present such a potential, but the factual basis for the Region’s deter-
mination is not apparent in the administrative record before us. The
Fact Sheet merely states that “[t]he proposed permit contains require-
ments as necessary to comply with the dissolved oxygen (D.O.) stand-
ard of 5.0 mg/l for this receiving water” (AR 00149). The response
to comments similarly states that the permit requirement “is required
in accordance with the current State water quality standards and
the water quality management plan, pursuant to 40 CFR 122.44(d)”
(AR 00247). Neither document provides enough factual information
to allow us to conclude as a matter of law that the mill’s discharges
present a reasonable potential for violating Louisiana’s standards.
We conclude, therefore, that whether Boise’s discharges will cause
or contribute to, or have a reasonable potential for causing or contrib-
uting to, a violation of Louisiana’s water quality standard is a mate-
rial issue of fact. See Miami-Dade Water and Sewer Authority Depart-
ment, NPDES Appeal No. 91-14, at 11 (EAB, July 27, 1992) (whether
Miami-Dade’s effluent causes, has the reasonable potential for caus-
ing, or contributes to a violation of Florida’s toxicity standard is
a material issue of fact). Accordingly, we are remanding the issue

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BOISE CASCADE CORPORATION 485

so that the Regional Administrator may schedule an evidentiary hear-
ing on the issue.

In its evidentiary hearing request, Boise also challenged the per-
mit’s dissolved oxygen requirement on the ground that it does not
reflect the fact that the receiving stream at issue here is subject
to natural, daily fluctuations of instream dissolved oxygen concentra-
tions below 5.0 mg/l. Boise points out that under the Louisiana stand-
ard, “naturally occurring variations below the criterion specified may
occur for short periods.” La. Admin. Code 33:IX.1113.C.3. Boise ar-
gues that the permit’s requirement that the mill cease discharging
from outfall 001 whenever the DO concentration at any of the mon-
itoring stations falls below 5.0 mg/l is inappropriate in light of the
sentence quoted above. In response, the Region cites the following
sentence from the Louisiana dissolved oxygen standard as authority
for the challenged effluent limitations: “However, no waste discharge
or human activity shall lower the DO concentration below the speci-
fied minimum.” Id. To resolve this issue requires an interpretation
of how these two sentences quoted by the parties relate to each
other, which is a legal issue. Nevertheless, we are remanding the
issue for an evidentiary hearing for two reasons. First, the issue
will be mooted if the Administrative Law Judge determines that
the mill’s effluent has no reasonable potential for causing or contrib-
uting to a violation of Louisiana’s standard. Second, because the
legal issue of how to reconcile the two sentences of the Louisiana
standard is interlaced with the factual issue of whether the mill’s
effluent has a reasonable potential for violating the Louisiana stand-
ard, the legal issue may be decided by the Administrative Law Judge
along with the factual issue. See 40 CFR § 124.74(b)(1); In re 446
Alaska Placer Mines More or Less, NPDES Appeal No. 84-13 (CJO,
April 2, 1985).8

Another issue raised by Boise relating to the permit’s DO effluent
limitation is whether the 24-hour provision in the permit is reason-
able. That provision requires that even after the DO concentration
in the receiving waters has risen above the specified minimum, the
mill must still wait 24 hours before resuming discharging from outfall

1. Boise sought an evidentiary hearing on whether this 24-hour
   period is necessary to ensure compliance with Louisiana’s water qual-
   ity standard. In its response to Boise’s evidentiary hearing request,

8It is possible, of course, that the Board may be faced with the issue later
in an appeal of the Administrative Law Judge’s decision on the issue. In that event,
the parties are directed to include in their appellate briefs a full discussion of the
relationship between the two sentences of the Louisiana regulation relied on by the
parties.

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486 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

the Region explains that the 24-hour requirement is compelled by
40 CFR §430.01(c), which contains a definition of “non-continuous
discharger,” as follows:

[A] mill which is prohibited by the NPDES authority
from discharging pollutants during specific periods
of time for reasons other than treatment plant upset
control, such periods being at least 24 hours in dura-
tion. * * *

The Region explains that:

Since the facility has been classified as a “non-contin-
uous discharger” subject to annual average effluent
limitations, it must be prohibited by the NPDES au-
thority from discharging pollutants during specific
periods of time, such periods being at least 24 hours
in duration.

Response to Request for Evidentiary Hearing, at 3 (AR 00049) (em-
phasis in the original). The Region’s argument that 40 CFR
§ 430.01(c) authorizes (or possibly even compels) the 24-hour require-
ment raises the legal issue of how to interpret Section 430.01(c).
Whether it raises any material issue of fact is not clear from the
Region’s argument. The Region asserts that the facility has been
classified as a “non-continuous discharger” but it is not clear from
the administrative record that this is the case. We are nevertheless
remanding this issue for an evidentiary hearing. This is because
the issue will be mooted if the Administrative Law Judge determines
that the mill’s effluent has no reasonable potential for causing or
contributing to a violation of Louisiana’s water quality standard for
dissolved oxygen. In addition, the legal issue of how to interpret
Section 430.01(c) is sufficiently intertwined with the factual issue
of whether the mill’s effluent has the potential for causing a violation
of Louisiana’s standard that the legal issue may be decided by the
Administrative Law Judge along with the factual issue.?

8The Board may also be faced with this issue again if the Administrative Law
Judge’s decision on the issue is appealed. In that event, the parties are directed
to include in their appellate briefs a full discussion of whether the 24-hour requirement
is either required or authorized by Section 430.01(c).

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BOISE CASCADE CORPORATION 487

D. Chronic Biomonitoring

Part I, Section A, and Part II, Section Q, of the permit require
quarterly chronic biomonitoring of the mill’s effluent. In its evi-
dentiary hearing request, Boise raised the following four issues relat-
ed to these two parts of the permit:

(1) Are the Permit’s requirements for quarterly
chronic biomonitoring in Parts I.A. and II.Q. unau-
thorized or otherwise unlawful because they have
not been properly promulgated as rules or because
rules authorizing the imposition of such require-
ments on a case-by-case basis have not been promul-
gated?

(2) Does the evidence show that there is no reason-
able potential for chronic toxicity of the type that
would be revealed by the chronic biomonitoring re-
quired in Parts I.A. and II.Q. of the Permit?

• OK OK

(5) Are the requirements in Parts I.A. and II.Q. of
the Permit for quarterly chronic biomonitoring inap-
propriate or unlawful under 33 U.S.C. §1318(a)

xe kD

(6) Are the requirements in Parts I.A. and II.Q. of
the Permit for quarterly chronic biomonitoring un-
reasonable, arbitrary and capricious, or otherwise an
abuse of discretion?

Request for an Evidentiary Hearing, at 26-27 (AR 00026—27).

Initially, the Regional Administrator denied an evidentiary hear-
ing with respect to all of the issues on the ground that they had
not been raised during the comment period. Response to Evidentiary
Hearing Request, at 4 (AR 00050). However, in a supplemental re-
sponse to the evidentiary hearing request, the Region reversed itself
and concluded that the issues had been raised during the public
comment period. It then granted an evidentiary hearing on the issue
of whether the requirement for quarterly chronic biomonitoring is
reasonable, but denied an evidentiary hearing on the issue of whether

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488 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

the Agency is authorized to require biomonitoring in an NPDES per-
mit. In denying an evidentiary hearing on the latter issue, the Region
explained that biomonitoring is authorized by Clean Water Act § 308,
33 U.S.C. §1318 and by 40 CFR §122.48(a). The Region also ex-
plained that biomonitoring is necessary to achieve Louisiana’s nar-
rative criterion for toxic substances and that it was therefore required
under Clean Water Act §301(b)(1)(C), 33 U.S.C. §1311(b)(1)(C) and
40 CFR § 122.44(d)(1). Supplemental Response to Evidentiary Hearing
Request, at 2 (AR 00326).1°

On appeal, Boise states that it does not dispute that EPA has
authority to impose reasonable biomonitoring requirements and that
EPA could impose the biomonitoring at issue if those requirements
were in fact necessary to achieve Louisiana’s narrative criterion for
toxic substances. Boise states that the real issue is whether the
biomonitoring requirements in the permit “are reasonable or nec-
essary to achieve Louisiana’s narrative criterion for toxic substances.”
Amended Notice of Appeal and Petition for Review, at 11.

We are of the view that the Region has already granted the
evidentiary hearing that Boise seeks. The Region has granted a hear-
ing on “whether the requirement for quarterly chronic biomonitoring
is reasonable.” Region’s Supplemental Response to Boise’s Evidentiary
Hearing Request, at 2 (AR 00326). While this grant of review does
not use the word “necessary” in framing the issue, in our view an
evidentiary hearing on whether the biomonitoring requirements are
“reasonable” is essentially an inquiry into whether the requirements
are “necessary” to ensure compliance with the State water quality
standard (i.e., whether the mill’s effluent has a reasonable potential
for causing or contributing to a violation of a state water quality
standard).11 For this reason, we believe that the supplemental re-
sponse to Boise’s evidentiary hearing request is best read as granting
the evidentiary hearing that Boise seeks. Accordingly, in the evi-
dentiary hearing on whether the biomonitoring requirements are rea-
sonable, the Region is directed to allow Boise to introduce evidence

10The biomonitoring requirements in the permit are not “attributable to State
certification” within the meaning of 40 CFR § 124.55(e), for the same reasons that
the permit requirements relating to dissolved oxygen are not “attributable to State
certification.” See footnote 7 supra. In addition, the biomonitoring requirements were
altered in certain respects after the Region had received Louisiana’s certification let-
ters. Compare Proposed Permit (AR 00185) with Final Permit (AR 00269).

11See Miami-Dade Water and Sewer Authority Department, NPDES Appeal No.
91-14, at 10 (EAB, July 27, 1992) (a permit condition is deemed “necessary” to ensure
compliance with a water quality standard if the subject discharge “will cause, ha[s]
the reasonable potential to cause, or contribute to an excursion above any State
water quality standard * * *”),

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BOISE CASCADE CORPORATION 489

on whether the disputed biomonitoring requirements are necessary
to meet Louisiana’s narrative toxicity standard.12 In view of our con-
clusion that the Region has already granted what Boise seeks, we
see no reason to grant review of this issue.

II. CONCLUSION

In sum, the following issues are remanded to the Region for
an evidentiary hearing: (1) whether discharges at Boise’s facility fall-
ing into the groundwood-chemi-mechanical and groundwood-thermo-
mechanical subcategories now make up a substantially larger percent-
age of the effluent coming out of outfall 001 than they did when
the previous permit was issued; (2) whether pH limits of 5.0 to
9.0 standard units represent BCT for the groundwood-chemi-mechani-
cal and groundwood-thermo-mechanical subcategories; (3) if the first
two issues are resolved in favor of Boise, what pH limitation for
outfall 001 would accurately reflect the differing BCT levels of dis-
charges coming out of outfall 001; (4) whether there is a reasonable
potential that discharges from the Mill will cause or contribute to
a violation of Louisiana’s water quality standard for dissolved oxygen;
(5) whether Louisiana’s dissolved oxygen standard authorizes the Re-
gion to require that Boise cease discharging whenever the DO con-
centration in the receiving waters falls below 5.0 mg/l at any of
the specified monitoring stations; (6) whether 40 CFR § 430.01(c) ei-
ther authorizes or compels the Region to include the 24-hour require-
ment in the permit’s effluent limitation for dissolved oxygen. In addi-
tion, the Region shall determine whether, in light of this opinion,

12In all probability, Boise’s confusion about the scope of the Region’s grant of
an evidentiary hearing on the biomonitoring requirements can be traced to another
part of the Region’s Supplemental Response to Boise’s Evidentiary Hearing Request,
in which the Region explains why it denied an evidentiary hearing on whether the
biomonitoring requirements are “unlawful or not supported by the evidence or sound
policy.” In that discussion, the Region explains that the Agency is authorized to
impose biomonitoring conditions under Clean Water Act §308, 33 U.S.C. § 1318 and
40 CFR §122.48(a). The Region also states that under 40 CFR §122.44(d)(1), the
Agency is required to include conditions in the permit as necessary to achieve the
States’ water quality standards as established under Clean Water Act § 303, 33 U.S.C.
§1313. In light of these statutory and regulatory mandates, the Region concludes
that the biomonitoring requirements are “not only legal, but appropriate and nec-
essary.” Region’s Supplemental Response to Boise’s Evidentiary Hearing Request, at
2 (AR 00326). Despite the Region’s use of the word “necessary” in its conclusion,
we believe the Region did not mean to take a position on the factual issue of whether
the biomonitoring requirements are “necessary” to ensure compliance with Louisiana’s
narrative toxicity standard, since this issue would be within the scope of the hearing
granted. In all probability, when the Region concluded that the biomonitoring require-
ments are “necessary,” it was expressing its position on the legal issue of whether
the Region has authority to impose biomonitoring requirements if they are in fact
necessary to ensure compliance with a State’s narrative toxicity standard.

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490 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

an evidentiary hearing should be granted on the issue of whether
the pH limitation for outfall 002 should be changed to take into
account the pH of the stormwater flowing into the facility from off-
site. As for the other issues raised in Boise’s amended petition, review
is denied.

So ordered.

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