Broward County, Florida

Plain-English summary

Broward County sought review of EPA Region IV's denial of an evidentiary hearing request concerning its NPDES permit for the Northern Regional Wastewater Treatment Plant. The Environmental Appeals Board ordered the Region to supplement the record on whether the plant's effluent had a reasonable potential to violate Florida's total residual chlorine criterion and whether the selected toxicity-test species represented the indigenous aquatic community or suitable surrogates. The Board also ordered the permit changed to allow toxicity testing at 30% diluted effluent rather than 100% full strength. It denied review of the remaining objections, including the generalized challenge to the plant's toxicity to the marine environment.

Decision snapshot

• Cited authorities: 33 U.S.C. §§ 1311 and 1342; 40 C.F.R. §§ 122.44, 124.13, 124.53, 124.60, 124.74, 124.75, 124.76, and 124.91
• Outcome: The permit was remanded for further explanation of the total residual chlorine and toxicity-test species issues, and for correction of the testing dilution requirement. Review was denied on the remaining issues.
• Key point: The Board required EPA to connect permit conditions to a supported factual record and to apply the open-ocean toxicity-testing rule as written.

Full text (EPA EAB public release)

BROWARD COUNTY, FLORIDA 705

IN THE MATTER OF BROWARD COUNTY, FLORIDA
NPDES Appeal No. 92-11

ORDER DENYING REVIEW IN PART AND REMANDING IN
PART

Decided June 7, 1993

Syllabus

The Broward County Public Works Department seeks review of the denial of
an evidentiary hearing request on certain provisions in an NPDES permit for the
County’s Northern Regional Wastewater Treatment Plant. The Plant discharges to
the Atlantic Ocean 7,300 feet from shore. Broward’s evidentiary hearing request listed
five issues under the heading “[s]tatement of disputed issues of material fact.” These
issues generally concerned the permit’s toxicity testing requirements and the limitation
on total residual chlorine. The Regional Administrator denied the evidentiary hearing
request on the grounds that Broward had failed to raise any material factual issues,
was impermissibly attempting to challenge regulations, and had raised issues in its
request that it failed to raise in its comments on the draft permit.

Held: The permit is remanded so that the Region may supplement the record
on the following issues: 1) whether Broward’s effluent is causing or contributing to,
or has the reasonable potential to cause or contribute to, a violation of Florida’s
water quality criterion for total residual chlorine at Rule 17-302.560(13), F.A.C.; and
2) whether the test species specified in the permit are significant to the indigenous
aquatic community and, if not, whether they will accurately predict how indigenous
species would fare when exposed to Broward’s effluent. If Broward is not satisfied
with the Region’s explanation on remand, Broward may renew its request for an
evidentiary hearing on either or both of these issues. The Region shall evaluate this
renewed request in accordance with the same regulatory provisions applicable to the
original request. If the Region denies the request, Broward may again file an appeal
with the Board. In addition, the Region is ordered on remand to modify the permit
to allow Broward to conduct toxicity testing on effluent diluted to 30% full strength.
With respect to the other issues raised in Broward’s petition, review is denied.

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706 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

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

Opinion of the Board by Judge Reich, in which Judge Fire-
stone joined. Judge McCallum joined in the Board’s opinion,
except for Section II.E., for which he filed a concurring opin-
ion, post, p. 20:

I. BACKGROUND

The Broward County Public Works Department (Broward) seeks
review of U.S. EPA Region IV's denial of an evidentiary hearing
request on certain provisions of a National Pollutant Discharge Elimi-
nation System (NPDES) permit for the County’s Northern Regional
Wastewater Treatment Plant, a publicly owned treatment facility.1
The permit regulates the plant’s discharge of sanitary wastewater
into the Atlantic Ocean 7,300 feet from shore. In its petition for
review, Broward appeals the Region’s denial of its evidentiary hearing
request on issues which, in pertinent part, relate to the permit’s
toxicity testing requirements and the permit’s limitation on total
residual chlorine (TRC). At the request of the Environmental Appeals
Board, the Region filed a response to the petition for review.

The background to this proceeding is as follows. On March 13,
1990, Broward filed an NPDES permit renewal application with Re-
gion IV. The Region issued a draft permit on June 28, 1990, and,
on the same date, requested that the Florida Department of Environ-
mental Regulation (FDER) certify the draft permit in accordance
with Section 401 of the Clean Water Act, 33 U.S.C.A. §1341.2
Broward submitted comments on the draft permit on July 24, 1990,
objecting to the permit’s limitations on total residual chlorine, the
requirement that it conduct toxicity testing in 100% effluent, and

‘Under the Clean Water Act, discharges into waters of the United States by
point sources, like Broward’s wastewater treatment plant, must have a permit in
order 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.

2See Exh. 16 to Region’s Response. Under CWA § 401(a)(1), the Agency may
not issue a permit until the State either certifies that the permit complies with
State water quality standards or waives certification. See 40 C.F.R. § 124.53. Where
a State has certified a federally issued permit, any challenges to permit limitations
and conditions attributable to State certification will not be considered by the Agency.
See 40 C.F.R. § 124.55(e); In re General Electric Company, Hookset, New Hampshire,
NPDES Appeal No. 91-13 (EAB, January 5, 1993). Where a State has waived certifi-
cation, however, the Agency’s application of State water quality standards is open
to review for consistency with 40 C.F.R. § 122.44(d).

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BROWARD COUNTY, FLORIDA 707

the time period for certain acute toxicity tests.3 By letter dated Sep-
tember 19, 1990, the FDER waived certification and requested that
the Region “issue a short-term permit, for a two to three year dura-
tion, so that it may be re-evaluated to incorporate any revised permit
conditions which may result from State permit revisions and the
SEFLOE II ocean outfall study.”4 The final permit decision was is-
sued on September 26, 1990, with a permit expiration date of March
31, 1994.

On October 23, 1990, Broward filed its request for an evidentiary
hearing. In Paragraphs 6.A.-E. of the request, Broward identified
and set forth the following five issues as “disputed issues of material
fact”:

A. The best available control technology, prevention of signifi-
cant deterioration, certification of compliance with State
water quality standards, or compliance with new source
performance standards.

B. Whether the use of Class III water quality criteria is ap-
propriate before the FDER has determined that a whole
water quality effluent limitation is necessary.

C. Whether the biotoxicity test organisms designated for use
in the acute toxicity test are species significant to the
indigenous aquatic environment affected by the outfall.

D. Whether the testing methods for toxicity of the effluent
employed are appropriate for determining toxicity of the
deep ocean outfall environment.

3See Exh. D to Petition for Review. The contested requirements were included
in the permit pursuant to the Agency’s obligation to establish permit conditions nec-
essary to comply with State water quality standards. See 40 C.F.R. § 122.44.

4 Letter from C. Joseph Doker, Environmental Specialist, Division of Water Facili-
ties, Florida Department of Environmental Regulation, to Roosevelt Childress, Chief,
South Area Permits Unit, U.S. EPA Region IV (September 19, 1990) (Exh. 26 to
Region’s Response).

According to Broward, the Broward County Wastewater Management Division, in
conjunction with other Southeast Florida communities and the National Oceanic and
Atmospheric Administration, is currently involved in a sampling and monitoring pro-
gram which will characterize the effluent and mixing properties of various open ocean
outfalls, including the outfall for the Northern Regional Wastewater Treatment Plant.
The study is referred to as SEFLOE II for the Southeast Florida Outfalls Experiment.

5Under 40 C.F.R. § 124.74, any interested person may submit a request to the
Regional Administrator for an evidentiary hearing within 30 days following the service
of notice of the Regional Administrator’s final permit decision.

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708 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

E. Whether the effluent discharged by the North Regional
Wastewater Treatment Facility is toxic to the marine envi-
ronment to which it is discharged.

Request for Evidentiary Hearing, at 16 (Exh. B to Petition for Re-
view).6 On May 27, 1992, the Region denied the hearing request
on the grounds that the above-quoted “disputed issues” failed to raise
any material issues of fact, that some of the issues had not been
raised during the public comment period,’ and that they constituted
attacks on promulgated regulations. See Letter from Greer S. Tidwell,
Regional Administrator, Region IV, to Director, Wastewater Manage-
ment Division, Broward County Public Works Department, dated May
27, 1992 (hereinafter Denial of Hearing Request) (Exh. A to Petition
for Review). Broward’s Petition for Review followed.®

Broward raises the identical issues in its petition for review
and contends that the Region’s denial of its evidentiary hearing re-
quest on each of these issues was clearly erroneous. Petition for
Review, at 1. In its response, the Region requests that we deny
the petition for review. The Region relies solely on the argument
that the above-quoted issues were not raised during the public com-
ment period and were not stated with sufficient specificity.

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, 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 there-

6Paragraph 5 of the evidentiary hearing request, entitled “[s]tatement of how
petitioners substantial interests are affected by the Agency’s action,” contains an ex-
panded discussion of some of the issues listed in more general form in paragraph
6.

7 Any person who wishes to contest any provision of a draft permit must “raise
all reasonably ascertainable issues and submit all reasonably available arguments
supporting their position” by the end of the comment period on the draft permit.
40 C.F.R. §124.13; see also 40 C.F.R. § 124.76. In addition, to preserve an issue
for appeal, a petitioner must state that issue with specificity in its evidentiary hearing
request. 40 C.F.R. § 124.74.

®Under 40 C.F.R. § 124.91, within 30 days of the denial of a request for an
evidentiary hearing, any requester may appeal any matter set forth in the denial

by filing a notice of appeal and petition for review with the Environmental Appeals
Board.

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BROWARD COUNTY, FLORIDA 709

fore be reviewed by the Environmental Appeals Board.® See, e.g.,
In re City of Jacksonville, District II Wastewater Treatment Plant,
NPDES Appeal No. 91-19 (EAB, August 4, 1992). The petitioner
has the burden of demonstrating that review should be granted.
See 40 C.F.R. §124.91(a). In determining whether Broward has met
this burden, each of the alleged disputed issues of material fact
will be discussed in the order in which it appears in Paragraph
6 of Broward’s evidentiary hearing request.

A. “The best available control technology, prevention of significant
deterioration, certification of compliance with State water quality
standards, or compliance new source performance standards.”

Although Broward lists this as a disputed issue of material fact,
it is impossible to determine what permit provisions are being con-
tested and on exactly what grounds. As the Region states in its
response, this “issue” is no more than an unintelligible collection
of phrases 1° and, as such, it does not contain the degree of specificity
required to support a petition for review. See In re Sequoyah Fuels
Corporation, NPDES Appeal No. 91-12, at 4 (EAB, August 31, 1992)
(disputed issues must be stated with specificity). Review is therefore
denied on this issue.

B. “Whether the use of Class III water quality criteria is appropriate
before the FDER has determined that a whole water quality effluent
limitation is necessary.”

The Region argues that this issue, as framed in paragraph 6.B.
of Broward’s evidentiary hearing request, was properly denied be-
cause the appropriateness of using Class III 11 water quality criteria
was not raised during the public comment period, and, even if it
had been raised, the issue was not stated with sufficient specificity
to justify an evidentiary hearing. Region’s Response at 5-7, 11. We
disagree.

® 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 (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.

10 See Region’s Response, at 12-13.

11 All surface waters of the State have been classified according to designated
uses. Class III waters are those designated for “Recreation, Propagation and Mainte-
nance of a Healthy, Well-Balanced Population of Fish and Wildlife.” Rule 17-
302.400(1), F.A.C.

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While this issue is stated in general terms, the focus of Broward’s objection is the permit’s limitation on total residual chlorine (TRC), which is based on the State’s water quality criterion for TRC in Class III waters. As such, this issue was intended as a short-hand reference to the more detailed discussion in paragraph 5.A. of the evidentiary hearing request pertaining to the permit’s TRC limitation. While the structure of the evidentiary hearing request is confusing, it contains several paragraphs which, when read together, make clear that paragraph 5.A. is actually a more particularized statement of the Class III water quality criteria issue quoted above.¹² Indeed, the Region itself appeared to reach this same conclusion in its denial of the hearing request. That is, the Region stated that “although it is not clearly stated in the evidentiary hearing request, the Regional Administrator interprets the challenge [to the permit’s use of Class III water quality criteria] as addressing the monitoring and effluent requirements for TRC set out in the permit.” See Attachment to Regional Administrator’s Decision on Broward County’s Request for an Evidentiary Hearing, at 1 (Exh. A to Petition for Review) (hereinafter “Attachment to Denial”). We believe that any lack of specificity in the statement in paragraph 6.B. is thus remedied by the more specific discussion in paragraph 5.A.

Having concluded that the issue involves an objection to the necessity for the permit’s TRC limitation, we similarly conclude that, contrary to the Region’s assertion, this issue was raised in Broward’s comments on the draft permit.¹³ Thus, the issue of whether the

¹² This conclusion is also reinforced by Broward’s statement in paragraph 7.A. of the hearing request, which reads, in part:

[Broward] believes the Agency is not correct in its application of 40 CFR Section 122.44 (d.)(1.)(iv.) to the Broward County permit, thereby requiring the use of a FDER Class III Water Quality Criteria for TRC. The facts which warrant reversal or modification of the Agency’s action are stated in section 5.A. of this document

• • *.

¹³ In its comments on the draft permit, Broward stated:

The Wastewater Management Division requests that the maximum total chlorine residual concentration be eliminated from the NPDES permit and replaced with a statement specifying “discharge must meet Florida Administrative Code Chapter 17–6, 17–4 requirements of open ocean discharges for class 3 water quality bacteriological criteria at the edge of a 200-meter mixing zone.” The sampling and monitoring program (SEFLOE II) which will assess this initial dilution, mixing zone characteristics, and fecal coliform level of the discharge will clarify completely the fecal coliform/chlorine residual requirements for the NPDES permit. We believe it inappropriate to place this in the NPDES permit until these issues are resolved scientifically.

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BROWARD COUNTY, FLORIDA 711

permit’s TRC limits are necessary to comply with the applicable State
requirement was preserved for review. We now turn to the merits
of this issue.14

The final permit states that by January 1, 1994, “the final daily
maximum concentration for TRC shall not exceed .01 mg/l * * *.”
Permit Condition 9.b., at I-3. As previously noted, this requirement
mirrors Florida’s water quality criterion for TRC in Class III waters.
See Rule 17-302.560(13), F.A.C. (stating that, except within zones
of mixing, total residual chlorine “shall not exceed 0.01 milligrams
per liter.”),15

In paragraph 5.A. of the hearing request, Broward objected to
the permit’s TRC limitation in permit conditions I.A.9.a. and b.16
This paragraph stated, in part:

The water quality based criteria for total chlorine
residual listed in the FAC is .01 mg/l. The Agency
also listed in the comments that the reason for inclu-
sion of the TRC limit in our NPDES Permit is au-
thorized and required by 40 CFR Section
122.44(D)(1)(iv). This reference from 40 CFR, * * *
states that if the permitting authority determines
the outfall has reasonable potential to cause in-
stream excursion above any numerical criteria for

Comments on Draft Permit, at 1 (Exh. D to Petition for Review).
14The petition also raises the question of whether monitoring for TRC is appro-
priate “in-the-pipe” or at the “end-of-pipe.” Petition for Review, at 3. Because this
issue was not raised in Broward’s comments on the draft permit or in the evidentiary
hearing request, we deny review of this issue as not having been preserved for review.
15Permit Condition 9.b. states that the permit’s TRC limitation does not provide
for a zone of mixing in the receiving water.
16 These conditions provide as follows:
9.a. The interim daily maximum total residual chlorine (TRC)
concentration shall not exceed 0.2 mg/l and shall be effective
through December 31, 1993.
9b. The final daily maximum concentration for TRC shall not
exceed 0.01 mg/l and shall be achieved by January 1, 1994. This
limit is included to prevent toxic effects from chlorine in the re-
ceiving water. This limit does not provide for a zone of mixing
for TRC in the receiving water. The permittee may apply for
a mixing zone for TRC from the Florida Department of Environ-
mental Regulation (FDER) if the permittee determines such to
be a benefit. If a mixing zone for TRC is granted by the FDER
and concurred in by EPA, the permittee may apply for a modifica-
tion of the above limit from EPA.

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712 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

whole effluent toxicity, then the permit must contain

effluent limits for whole effluent toxicity.
Broward argued that neither the State nor the Region had sufficient
information to establish that a TRC limitation was necessary to pre-
vent a violation of the State requirement. Thus, according to Broward,
the Region should remove any TRC limitations pending the comple-
tion of the SEFLOE II sampling and monitoring program that is
currently being conducted. Request for Evidentiary Hearing, at 15.A.
(Exh. B to Petition for Review).

In its denial of Broward’s evidentiary hearing request, the Region

stated, in part:

In raising issues regarding TRC monitoring require-

ments and discharge limitations, Broward County

challenges EPA’s authority to impose effluent limita-

tions in permits. These purely legal issues of author-

ity are resolved by the Clean Water Act, 33 U.S.C.

§ 301(b)(1)(C), and EPA regulations at 40 C.F.R.

§ 122.44, which require that the permit contain efflu-

ent limitations which are at least as stringent as

state water quality standards. The TRC limit in-

cluded in the permit is proscribed [sic] by the State

of Florida in F.A.C. § 17-302.560(13).
Attachment to Denial, at 2. In its response to the petition for review,
the Region states that “EPA’s response to the comment [on the draft
permit] explained that the TRC limit is required under the Florida
Administrative Code (FAC) and EPA regulations at 40 C.F.R.
§ 122.44.” Response to Petition, at 6.

Contrary to the Region’s assertions, we do not read Broward’s
petition as challenging the Region’s authority to impose effluent limi-
tations in permits if the factual predicate for regulation is met. Rath-
er, we read the petition and evidentiary hearing request as challeng-
ing the Region’s factual basis for concluding that the permit’s TRC
limitation is necessary to ensure compliance with Florida’s water
quality criterion for TRC, and thus for concluding that the limitation
is therefore “required and authorized by 40 C.F.R. § 122.44(d)(1)(iv).” 17

17See Region’s Response to Comments, at 3 (Exh. E to Petition for Review).
40 C.F.R. § 122.44(d)(1)(iv) provides that a permit must contain toxicity limits where
the permitting authority determines that a discharge has “the reasonable potential
to cause, or contribute to an in-stream excursion above the numeric criterion for
whole effluent toxicity * * *.”

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BROWARD COUNTY, FLORIDA 713

Under CWA § 301(b)(1)(C), the Region is required to include those
permit limitations which are necessary to ensure compliance with
State requirements. This section is implemented by 40 C.F.R.
§ 122.44(d). Section 122.44(d)(1) requires that a permit include those
limitations necessary to ensure compliance with water quality stand-
ards and other State requirements. A permit limitation is necessary
if the subject discharge will cause or contribute to, or has the reason-
able potential to cause or contribute to, an excursion above a State
requirement. See 40 C.F.R. § 122.44(d)(1). Thus, under the CWA and
its implementing regulations, the Region may include the challenged
TRC limitation in the permit only if it determines as a factual matter
that Broward’s discharge causes or contributes to, or has the reason-
able potential to cause or contribute to, a violation of the applicable
State requirement. See Miami-Dade Water and Sewer Authority De-
partment, NPDES Appeal No. 91-14, at 10 (EAB, July 27, 1992).

The administrative record is unclear as to whether the Region
ever made the factual determination that Broward’s effluent presents
such a potential. Because the Region concluded that Broward was
challenging the Region’s legal authority to include such a limitation,
the denial of the evidentiary hearing request does not discuss the
factual basis for this determination; nor is it contained elsewhere
in the administrative record on appeal. Due to the Region’s
misperception of the nature of Broward’s challenge, we cannot deter-
mine from the current record whether a material issue of fact exists.

Accordingly, this permit condition is remanded. On remand, the
Region must properly respond to the issue raised by Broward. The
Region must provide a detailed explanation of the factual basis for
concluding that Broward’s effluent has the reasonable potential for
causing or contributing to a violation of Rule 17-302.560(13), F.A.C.,
thus requiring regulation in accordance with 40 C.F.R. § 122.44(d)(1).
If Broward is not satisfied with this explanation, it may renew its
request for an evidentiary hearing following the procedures of 40
C.F.R. § 124.74. If the request is denied, Broward may file an appeal
of the denial with the Board under 40 C.F.R. § 124.91. Because the
current record is incomplete, we reach no conclusion at this time
on whether or not an evidentiary hearing is required.18

18In its denial of Broward’s evidentiary hearing request, the Region also asserted
that it was required to incorporate TRC limits in order to comply with 40 C.F.R.
§ 122.44(1) (stating, in pertinent part, that when renewing or reissuing permits, “in-
terim effluent limitations, standards or conditions must be at least as stringent as
the final effluent limitations, standards, or conditions in the previous permit * * *.”).

The Region did not raise this argument in its response to Broward’s comments on
Continued

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714 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

C. “Whether the biotoxicity test organisms designated for use in the
acute toxicity test are species significant to the indigenous aquatic
environment affected by the outfall.”

Florida’s toxicity standard for open ocean discharges provides,
in part, that “the effluent when diluted to 30% full strength, shall
not cause more than 50% mortality in 96 hours (96-hr. LC50) in a
species significant to the indigenous aquatic community.” Rule 17-
4.244(3)(c), F.A.C. Broward argues that contrary to this toxicity
standard, the test species specified in Part IV of the permit (Mysid
shrimp and inland silverside) “ha[ve] no relationship to the environ-
ment where effluent is discharged.” Petition for Review, at 5. In
its response, the Region argues that because Broward failed to raise
this argument during the public comment period, it is not entitled
to an evidentiary hearing. Region’s Response, at 8-9.

Under 40 C.F.R. Part 124, in order to contest a final permit
determination in an evidentiary hearing or to preserve an issue for
review by the Board, “all reasonably ascertainable issues” must be
raised by the close of the comment period. See 40 C.F.R. § 124.13.
In addition, 40 C.F.R. § 124.76 provides that “[n]o issues shall be
raised by any party that were not submitted to the administrative
record * * * as part of the preparation of and comment on a draft
permit unless good cause is shown for the failure to submit them.”
The purpose behind this requirement is to alert the Region to poten-
tial problems with the draft permit and to ensure that it has an
opportunity to address these problems before the permit becomes
final, thereby promoting the longstanding policy that most permit
issues should be resolved at the Regional level. See In re Sequoyah
Fuels Corporation, NPDES Appeal No. 91-12, at 4 (EAB, August
31, 1992); In re NPC Services, Inc, NPDES Appeal No. 91-4, at
2 (CJO, May 30, 1991). Although these regulations make clear that,
in order to preserve an issue, it must have been raised by someone
during the comment period, the person filing the petition for review
does not necessarily have to be the one who raised the issue. 19

In the present case, the Region is correct that Broward did not
raise the issue of whether or not the test species designated in the
permit were appropriate in its comments on the draft permit. How-

the draft permit, however, nor is the argument raised again in the Region’s response
to the petition for review. Because the Region appears to have abandoned this argu-
ment on appeal, and because there is insufficient information in the record on appeal
from which the Board can reach an informed decision, we do not reach this issue.

19In order to file an appeal with the Board under 40 C.F.R. § 124.91, however,
a petitioner must either be a party or have filed a request for an evidentiary hearing.

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BROWARD COUNTY, FLORIDA 715

ever, this issue was raised by another commentor (Project
ReefKeeper),20 and the Region had an opportunity to respond.21 The
regulatory requirement has therefore been met.

Because the Region believed that this issue was not properly
before the Board, the Region’s Response does not address the merits
of Broward’s argument. The Region does address the merits of this
argument, however, in its denial of Broward’s request for an evi-
dentiary hearing. There, the Region stated:

This is a purely legal issue which is not entitled
to an evidentiary hearing pursuant to 40 C.F.R.
§§ 124.74 and 124.75. In raising this issue, Broward
challenges EPA’s authority to impose test procedures
to determine toxicity. The whole effluent toxicity
monitoring requirements and effluent limitations in-
cluded in the permit are prescribed by the State
of Florida in F.A.C. §17-3.021(1). “FDER legal and
bioassay personnel have interpreted this as meaning
that any recognized organism can be used for bio-
assay testing as long as that organism is known to
be sensitive to toxic substances that can be expected
to impact the indigenous community.” Final Report
Of The Bioassay Task Force: Review And Rec-
ommendations Of The Florida Department Of Envi-
ronmental Regulation’s Toxicity Testing Program

20 See Letter from Alexander Stone, Director, Project ReefKeeper, to Diane Barrett,
Public Notice Coordinator, Office of Public Affairs, Region IV (July 24, 1990) (Exh.
19 to Region IV’s Response). This letter states in pertinent part as follows:

The proposed permit indicates specific organisms to be tested.
These two organisms are generally hearty creatures in the wild
and are not necessarily representative of the marine ecosystem
in this sensitive geographical area. To accurately assess the acute
toxicity of the wastes discharged into the delicate reef systems
off Florida’s coastline, additional species should be tested. Also
incorporated into the testing program should be species of commer-
cial and recreational value, and the important primary producers
which play a critical role in the food chain. Including such test
species would reveal the true impact effluent discharge has been
having on these marine resources.

21 On page 6 of its Response to Comments, the Region states:

EPA believes that the two required test species are representative
of this area. The commentor has provided no evidence to the
contrary. Alternate test species for which testing protocols have
been developed are listed in EPA 600/4-85-013, Table 1. However,
EPA has chosen the two test species specified in the permit for
all similar discharges in Florida.

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716 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

(August, 1985). As set out in the response to com-
ments on the draft permit, the test species des-
ignated in the permit are recognized sensitive ones
as required by EPA and Florida regulations.

As discussed above, EPA is obligated to apply state
water quality standards in order to ensure compli-
ance with Section 301(b)(1)(C) of the Clean Water
Act. * * * Challenges to existing regulations such
as these are not appropriate for consideration in evi-
dentiary hearings.

Attachment to Denial, at 3 (Exh. A to Petition for Review).

As noted above, Florida’s toxicity standard for open ocean dis-
charges requires that the permittee determine the effect of its dis-
charges on “species significant to the indigenous aquatic community.”
Contrary to the Region’s assertion, Broward’s challenge is not to
the Agency’s legal authority to impose test procedures to determine
toxicity, but to the Region’s selection of the particular test species
identified in the permit. The Region must therefore provide a detailed
explanation of the basis for selecting the test species specified in
the permit. The Region must explain why it believes the test species
selected are “significant to the indigenous aquatic community,” or,
if this is not the case, why the use of these species will adequately
predict how indigenous species would fare when exposed to Broward’s
effluent.22 The record on appeal does not contain an adequate expla-
nation in this regard. We are therefore unable to determine at this
time whether Broward’s objection to the selected test species raises
a material issue of fact warranting an evidentiary hearing. Accord-
ingly, on remand, the Region must supplement the record with this
information.2? If Broward is not satisfied with the explanation on

22 As we stated in Miami-Dade, supra, at 17, although Florida's toxicity standard
requires that the effluent’s effect on indigenous species be determined, it does not
specifically require that testing be done on those species directly. “It is conceivable

• • • that the effluent’s effect on indigenous species may be ascertained by measuring
      the effluent’s effect on non-indigenous species.” If the test species designated in the
      permit are not indigenous to the aquatic community, the Region must establish that
      these species can serve as suitable surrogates for determining the effluent’s lethal
      effect on indigenous species. Id.

23This supplemental information should include further explanation of why the
Region believes it selected an FDER-recognized species and the significance of such
a designation in terms of whether, as a matter of law, it eliminates the need for
an evidentiary hearing.

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BROWARD COUNTY, FLORIDA 7

remand, it may renew its request for an evidentiary hearing and,
if the request is denied, file an appeal with the Board.

D. “Whether the testing methods for toxicity of the effluent employed
are appropriate for determining toxicity of the deep ocean outfall
environment.”

In its denial of Broward’s request for an evidentiary hearing
on the above-quoted issue, the Region stated that the issue was
neither factually nor legally specific and therefore did not merit an
evidentiary hearing. See Attachment to Denial, at 2.24 While we
agree that this language lacks specificity, Broward expanded on this
issue in paragraph 5.B. of the hearing request. Specifically, Broward
argued that, as an open ocean discharger, it was subject to FAC
17-4.244(3)(c). Florida’s toxicity regulation for open ocean discharges
states, in part:

For open ocean discharges, the effluent, when diluted
to 30% full strength, shall not cause more than 50%
mortality in 96 hours (96-hr. LC50) in a species sig-
nificant to the indigenous aquatic community. Rapid
dilution shall be ensured by the use of multiport
diffusers, or a single port outfall designed (by a pro-
fessional engineer registered in Florida) to achieve
a minimum of 20:1 dilution of the effluent prior to
reaching the surface.

Rule 17—4.244(3)(c), F.A.C. As Broward reads it, this regulation al-
lows for the use of 30% dilution for the purpose of toxicity testing,
while the permit requires that the toxicity tests be performed using
100% effluent.25 That this was the issue Broward was intending
to raise tends to be confirmed by the Region in its denial of Broward’s
hearing request, where the Regional Administrator stated that “al-
though it is not clearly stated in the evidentiary hearing request,
I interpret the challenge as addressing the requirement set out in
the permit that Broward County use concentrations of 100% effluent
in the acute toxicity testing to evaluate whole effluent toxicity.” Thus,

24The Region makes the same argument in its response to the petition for review.
See Region’s Response, at 12.
25 Permit Condition I.A.12. provides:
Lethality to more than 50% of any test species in 100% effluent
in a test of 96 hours duration or less will constitute a violation
of Florida Administrative Code (FAC) Section 17—4.244(3)(a) (April
4, 1989) and the terms of this permit. The testing for this require-
ment must conform with Part IV of this permit.

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718 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

we conclude that the above-quoted issue, in combination with the
additional detail provided in paragraph 5.B. of the hearing request,
was stated in sufficient detail to survive an objection based upon
lack of specificity.

With regard to the merits of the issue, the Regional Adminis-
trator concluded that the permit’s toxicity testing requirements were
governed by the State of Florida in F.A.C. § 17—4.244(3)(a),26 which
the Regional Administrator evidently construed as not making spe-
cific allowance for conducting the toxicity testing in diluted effluent.
Thus, “Under the Clean Water Act, 33 U.S.C. § 301(b)(1)(C), and
EPA regulations at 40 C.F.R. § 122.44, the permit must contain efflu-
ent limitations which are at least as stringent as state water quality
standards.” Attachment to Denial, at 2. The Regional Administrator
also stated that:

Broward County’s challenge that Florida regulations
at F.A.C. § 17-4.244(3)(c) require monitoring in 30%
effluent for open ocean discharges is misleading.
Florida regulations allow the less stringent monitor-
ing requirements only when the single port outfall
ensures rapid dilution, defined as “a minimum of
20:1 dilution of the effluent prior to reaching the
surface.” Id. As Broward County has presented no
evidence that it ensures rapid dilution, less stringent
monitoring requirements are inappropriate at this
time.
Id. at 3. We disagree.

There appear to be at least two errors in the Region’s analysis.
First, the section of the Florida regulations relied upon by the Re-
gional Administrator to require toxicity testing in 100% effluent,
F.A.C. § 17-4.244(3)(a), specifically refers to an exception in F.A.C.
§ 17-4.244(3)(c) for open ocean discharges. The Region has not prop-
erly accounted for the exception. Second, there is nothing in the
language of the foregoing regulation to support the Region’s assertion
that Broward must first demonstrate that the outfall ensures rapid

26F.A.C. § 17-4.244(3)(a) provides, in part:

(T)he 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 indigenous
aquatic community, except as provided in paragraphs (b) or (c)
below.

(Emphasis added.)

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BROWARD COUNTY, FLORIDA 719
dilution. While we agree that rapid dilution is indeed a requirement
for open ocean discharges, nothing in the above-quoted standard or
in the record on appeal indicates that it is a condition precedent
to monitoring effluent at 30% full strength. Rather, the rule indicates
that this standard applies to any open ocean discharger. If there
is some other basis for imposing such a condition precedent, the
Region has not identified it. Accordingly, the permit is remanded
and the Region is ordered to revise the disputed permit conditions
to accurately reflect the language of Rule 17—4.244(3)(c).27
E. “Whether the effluent discharged by the North Regional
Wastewater Treatment Facility is toxic to the marine environment
to which it is discharged.”

According to the Region, this issue fails to articulate any discern-
ible factual or legal issue and therefore does not merit an evidentiary
hearing.

Under 40 C.F.R. § 124.74(b)(1), a request for an evidentiary hear-
ing must state each legal or factual question alleged to be at issue
and its relevance to the permit decision, together with a designation
of the specific factual areas to be adjudicated. See Sequoyah Fuels
Corporation, supra at 4. The request must also include:

Specific references to the contested permit conditions,

as well as suggested revised or alternative permit

conditions (including permit denials) which, in the

judgment of the requester, would be required to im-

plement the purposes and policies of the CWA.
40 C.F.R. § 124.74(c)(5) (emphasis added.) The need to identify the
specific permit conditions at issue is further reenforced by 40 C.F.R.
§124.74(d), which requires the Regional Administrator, in granting
a hearing, to:

[I]dentify the permit conditions which have been con-

tested by the requester and for which the evidentiary

hearing has been granted. Permit conditions which

are not contested or for which the Regional Adminis-

27 Although 40 C.F.R. § 124.91 contemplates that additional briefing typically will
be submitted upon a grant of a petition for review, a direct remand without additional
submissions is appropriate where, as here, it does not appear as though further
briefs on appeal would shed light on the issues addressed on remand. Cf. In re
Beazer East, Inc. and Koppers Industries, Inc., RCRA Appeal No. 91-25, at 15 (EAB,
March 18, 1993).

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720 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
trator has denied the hearing request shall not be
affected by, or considered at, the evidentiary hearing.
The Regional Administrator shall specify these condi-
tions in writing in accordance with § 124.60(c).

(Emphasis added.)

The requirement for specificity in articulating the legal or factual
question at issue is essential to allow for an informed decision by
the Regional Administrator, and meaningful review of the Regional
Administrator’s decision by the Board.28 The discussion of the above-
quoted issue in the evidentiary hearing request makes no reference
to any particular permit provision(s) to which Broward objects.

Thus, Broward’s evidentiary hearing request is clearly deficient
in failing to cite the permit provisions being challenged. We recognize
that two of the permit provisions previously discussed, permit condi-
tions 9 (TRC limitations) and 12 (relative to whole effluent toxicity)
clearly relate to the toxicity issue. In its petition for review on this
issue,29 Broward seems to be alluding to these provisions by generally
referencing the alleged misapplication of state water quality stand-
ards and flawed toxicity testing requirements (testing interval, meth-
odology, and species).3°

28As the Board recently stated in discussing a permittee’s obligation to identify
the specific permit conditions at issue in appeals under § 124.19, “fiJt is not this
Board’s obligation to search through the permit for the specific permit conditions
that fall into [permittee’s] general categories of objections. In re LCP-Chemicals, RCRA
Appeal No. 92-25, at 5. (EAB, May 5, 1993). Similarly, it is not the obligation of
the Regional Administrator or the Board to scrutinize the permit for those conditions
which might be implicated by a general comment in an evidentiary hearing request.

29We note that the lack of requisite specificity in the evidentiary hearing request
cannot be cured by providing greater specificity, for the first time, on appeal.

30The reference to the “testing interval” may relate to Broward’s argument in
paragraph 5.C. of its evidentiary hearing request. In paragraph 5.C., Broward argued
that Permit Condition IV.1.a. is overly conservative. Specifically, Broward objected
to the use of a 96-hour toxicity test. According to Broward “[t]he outfall from the
North Regional Wastewater Treatment Plant is located in 107 ft. of water in an
open ocean environment which discharges to the fringe of the Gulfstream current.
Even with the most conservative safety factor incorporated, it would be extremely
unlikely that any indigenous ocean species would stay in 100% of our effluent or
even 30% of our effluent for 96 hours in the open ocean.” Assuming this is the
issue Broward intended to reference, it fails to convince us that review is warranted.
The 96-hour exposure period is specified in Florida’s toxicity regulation for ocean
discharges. See F.A.C. § 17-4.244(3)(c), quoted at p. 14-15 supra. The actual dilution
taking place in the receiving waters is irrelevant to this requirement. See Miami-
Dade, supra, at 15.

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BROWARD COUNTY, FLORIDA 721

To the extent that Broward may have intended the general state-
ment in paragraph 6.E. to refer to the more specific objections to
conditions 9 and 12 identified elsewhere in paragraph 6, we have
already addressed those objections. However, to the extent. that
Broward intended this statement as a generalized objection to other
portions of the permit, this objection was not stated with sufficient
specificity to warrant review.?! For this reason, the evidentiary hear-
ing request was properly denied.

III. CONCLUSION

The permit is remanded. On remand, the Region must supple-
ment the record with regard to the following two issues: 1) whether
Broward’s effluent is causing or contributing to, or has the reasonable
potential to cause or contribute to, a violation of Florida’s water
quality criterion for total residual chlorine at Rule 17—302.560(13),
F.A.C.; and 2) whether the test species specified in the permit are
significant to the indigenous aquatic community and, if not, whether
they will accurately predict how indigenous species would fare when
exposed to Broward’s effluent. If Broward is not satisfied with the
Region’s explanation on remand, Broward would then be free to
renew its request for an evidentiary hearing on either or both of
these issues under 40 C.F.R. § 124.74. The Region shall evaluate
any such request in accordance with the same regulatory provisions
applicable to the original request. If the request is denied, Broward
may again file an appeal with the Board pursuant to 40 C.F.R.
§ 124.91.

In addition, on remand, the Region must modify the permit to
allow Broward to conduct toxicity testing on effluent diluted to 30%
rather than 100% full strength, pursuant to Florida’s toxicity stand-
ard for open ocean discharges (Rule 17—4.244(3)(c), F.A.C.). With re-
spect to the other issues raised in Broward’s petition, review is hereby
denied.

So ordered.
Concurring Opinion by Judge McCallum:

In its request for an evidentiary hearing, Broward specified the
following issue for adjudication at the hearing: “[w]hether the effluent

31As can be seen from this Board’s discussion of the issues raised in paragraphs
6.B. and 6.D., we have attempted to give meaning to those issues whenever possible
by carefully scrutinizing the evidentiary hearing request as a whole. However, we
decline to go beyond that into sheer speculation.

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722 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

discharged by the North Regional Wastewater Treatment Facility
is toxic to the marine environment to which it is discharged?” The
Regional Administrator rejected this issue and denied the evidentiary
hearing request because Broward failed to articulate any discernible
factual or legal issue. This rationale will surely strike some as being
anomalous since there is such a clear nexus between the issue raised
and two of the provisions in Broward’s permit, both of which are
specifically devoted to protecting the marine environment from the
possible toxic effects of Broward’s effluent: one is paragraph 9, which
restricts the total amount of residual chlorine in the facility’s effluent,
and the other is paragraph 12, which is a limitation on the toxicity
of the facility’s whole effluent without regard to the specific pollutants
that make up the effluent. I write in part to address this apparent
anomaly and in part because I use a somewhat different approach
than the Board in deciding to deny review in this instance. The
fact that Broward did not make specific reference to the two permit
provisions in raising the issue is something that I regard as a mere
technicality, which the Board can and should overlook in appropriate
circumstances.5?

Whether the facility’s effluent is toxic to the marine environment
is a straightforward factual issue, notwithstanding the Region’s asser-
tion to the contrary. The Region is plainly wrong to contend other-
wise. The correct basis for dismissing Broward’s toxicity issue has
more to do with relevancy than with any lack of specificity or any
alleged failure to articulate a discernible factual or legal issue. Fun-
damentally, the question of whether Broward’s effluent is toxic to
the marine environment has no bearing on the two permit provisions
described above. They are derived from state water quality standards,
which Region IV included in the permit pursuant to CWA
§301(b)(1)(C). Although these permit provisions are intended to pro-
tect the marine environment from toxic effluent, their legal status
overshadows any factual inquiry raised by Broward. Specifically,
these permit provisions embody requirements prescribed by state
water quality standards, which, if the requirements are met, are
deemed sufficient as a matter of law to protect the marine environ-
ment. Thus, for purposes of this permit determination, the only legiti-
mate question is whether the two permit provisions are necessary

32Qther portions of Broward’s request for an evidentiary hearing, as well as
its petition for review, have placed these two provisions in issue; therefore, simply
because the evidentiary hearing request did not mention the toxicity issue in the
same breath as paragraphs 9 and 12 of the permit is not a compelling basis for
ignoring the obvious.

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BROWARD COUNTY, FLORIDA 723

in the first instance,3? and if they are, whether in crafting them
the Region has correctly interpreted and applied the applicable state
water quality standards. Broward’s toxicity issue is not formulated
to ask these questions.*4 Therefore, the issue falls outside the scope
of, and is irrelevant to, the Region’s permit determination.

Review of the issue is therefore properly denied.

33As provided in 40 C.F.R. § 122.44(d)(1), a permit limitation is “necessary” if
the subject discharge will cause or contribute to, or has the reasonable potential
to cause or contribute to, an excursion above a State requirement.

34Broward has had more success in the formulation of its other issues. For in-
stance, as a result of Broward’s petition for review and the issues raised therein,
the Board has remanded paragraph 9 of the permit to the Region with directions
to explain why the limitation on total residual chlorine is “necessary” to ensure compli-
ance with State requirements in accordance with CWA § 301(b)(1)(C). See Part II.B.,
above. The Board took this action because it determined that the Region may have
erred in concluding that CWA § 301(b)(1)(C) requires this permit provision to be in
the permit. Consequently, until the proceedings on remand are completed, we will
not know whether the limitation is in fact necessary and, therefore, whether it is
required pursuant to CWA § 301(b)(1)(C). Also, in regard to paragraph 12 of the
permit, the Board concluded that the Region’s efforts to implement Rule 17-4.244(3)
F.A.C. were misdirected in several respects. See Part II.D., above. The Region had
erroneously mandated testing of undiluted effluent, rather than effluent diluted to
30% of full strength. This aspect of the Region’s permit determination has also been
remanded.

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