Puerto Rico Sun Oil Company, Inc.

Plain-English summary

Puerto Rico Sun Oil Company challenged an NPDES permit for its petroleum refinery in Yabucoa, Puerto Rico. It argued that the Puerto Rico Environmental Quality Board's Water Quality Certificate was not final because Sun Oil had requested reconsideration, and it raised additional legal and technical objections to the permit. The Environmental Appeals Board held that the certificate was legally effective when EPA issued the permit, because the reconsideration request did not suspend or postpone its effect, and that EPA had to include the certificate's conditions in the permit. The Board also held that some technical issues were not preserved during the draft-permit comment period. It denied the petition for review and the request for an evidentiary hearing. EPA's docket record notes that the First Circuit later vacated and remanded the EAB decision in Puerto Rico Sun Oil Co. v. EPA, 8 F.3d 73 (1st Cir. 1993).

Decision snapshot

• Cited authorities: Clean Water Act §§ 301, 401, and 402; 40 C.F.R. §§ 122.4, 122.44, 124.15, 124.18, 124.53, 124.55, 124.74, 124.76, and 124.91.
• Outcome: Petition for review denied. The EAB upheld EPA Region II's reliance on the Water Quality Certificate and denial of an evidentiary hearing.
• Key point: A state water-quality certification may support an NPDES permit before state-level appeal rights are exhausted when the certification remains effective and has not been stayed.

Full text (EPA EAB public release)

302 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF PUERTO RICO SUN OIL
COMPANY, INC.

NPDES Appeal No. 92-20

ORDER DENYING REVIEW

Decided October 23, 1992

Syllabus

Puerto Rico Sun Oil Company (“PRSOC”) has petitioned for review of a denial
of an evidentiary hearing request by EPA Region II. The request was made in conjunc-
tion with the issuance by Region II of a National Pollutant Discharge Elimination
System (“NPDES”) permit to the PRSOC refinery at Yabucoa, Puerto Rico.

The essence of the appeal is that the Regional Administrator erred in acting
upon a July 24, 1990 Water Quality Certificate (“WQC”) issued by the Puerto Rico
Environmental Quality Board. The Region determined the WQC to be a valid certifi-
cation under 40 C.F.R. § 124.53, thus allowing the permitting process to proceed.
(State certification or a waiver thereof is a precondition to issuance of an NPDES
permit by EPA.) PRSOC asserts that the WQC was not “final” under Puerto Rican
law, and thus could not provide the basis for a valid permit. PRSOC also raises
various other legal and technical objections to the permit.

Held: The Regional Administrator properly denied the request for an evidentiary
hearing. PRSOC’s legal objections to the permit are not well-founded. While the WQC
may be subject to further appeal under the Commonwealth’s administrative and judi-
cial process, it was legally effective on the date the permit was issued and thus
the issuance of the permit was valid. PRSOC’s technical objections are also not sus-
tained because they variously either relate to conditions of the permit required to
be included to conform it to the WQC, involve issues not previously raised in comments
on the draft permit, or both. Therefore, the petition for review is denied.

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

Opinion of the Board by Judge Reich:

Puerto Rico Sun Oil Company (“PRSOC”) seeks review of the
denial of an evidentiary hearing request in conjunction with the issu-
ance to it of a Clean Water Act National Pollutant Discharge Elimi-
nation System (“NPDES”) permit by EPA Region II. The permit cov-
ers discharges of pollutants from the PRSOC facility in Yabucoa,

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PUERTO RICO SUN OIL COMPANY, INC. 303

Puerto Rico. The denial was appealed to the Board pursuant to the
provisions of 40 CFR § 124.91.

I. BACKGROUND

The facts in this matter are not in dispute. On May 27, 1988,
PRSOC submitted to EPA Region II a permit renewal application
covering its Yabucoa petroleum refinery.1 On October 31, 1988, EPA
formally notified the Puerto Rico Environmental Quality Board
(“EQB”) of the application and requested that the EQB review the
materials and provide the certification required by section 401 of
the Clean Water Act, 33 U.S.C. § 1341, for that discharger. Certifi-
cation by the Commonwealth, or a waiver of certification, is a pre-
requisite to the issuance of a permit by EPA.?

On August 11, 1989, EPA gave public notice of the draft permit
for the PRSOC facility. One comment received on this draft was
a letter from attorneys for the permittee which pointed out that
the EQB had not yet issued a final Water Quality Certificate (“WQC”)
pursuant to section 401 and that EPA could not issue the permit
without a WQC unless it followed the provisions for waiver of State
certification (AR, No. 15).3 In response, Region II’s Water Manage-
ment Division Director acknowledged that no final WQC had yet
been issued and that the Region did not intend to issue the permit
prior to receipt of the final WQC. This letter also indicated Region
II’s intention “to finalize the permit promptly after receipt of the
final WQC.” (AR, No. 18).

On July 24, 1990, EQB issued a WQC to the permittee, with
a copy to EPA (AR, No. 23). The WQC stated that there was a
reasonable assurance that the discharges will not violate applicable
water quality standards “if the limitations on Tables A-1, 2 are
met. The conditions specified in the aforementioned tables shall be
incorporated into the NPDES permit in order to satisfy the provisions
of sections 301(b)(1)(C) of the Act.”4 The WQC also stated that if

1 At that time, the facility was owned by, and the application made in the name
of, the Yabucoa Sun Oil Company (“YSOC”). Subsequently, as the result of a corporate
transaction, YSOC changed its name to the Puerto Rico Sun Oil Company and the
permit was transferred to PRSOC. For convenience, the name Puerto Rico Sun Oil
Company, or PRSOC, will be used throughout this opinion.

2 40 C.F.R. § 122.4 provides that “[n]o permit may be issued * * * when the
applicant is required to obtain a State or other appropriate certification under section
401 of CWA and § 124.53 and that certification has not been obtained or waived”.

3 All cites to the Administrative Record will be in the form of (AR, No. ___).

4 Section 301(b)(1XC) requires the achievement of:

Continued

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304 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

PRSOC had any objection to the “final WQC,” it had a statutory
right to request a reconsideration within 15 calendar days of the
date of receipt of the WQC.

On August 17, 1990, PRSOC, through the Technical Consulting
Group, filed an apparently timely request for reconsideration of the
WQC (AR, No. 24). As will be discussed at length later in this opin-
ion, it is the effect of this filing that is in dispute and is central
to this appeal.

On August 21, 1990, Region II issued a revised public notice
for the PRSOC permit, which incorporated the terms of the July
24, 1990 WQC. During the comment period, EPA received a letter
from the EQB, which stated in part:

This is to inform you that PRSOC has requested
a reconsideration of the final Water Quality Certifi-
cate (WQC) issued by the Environmental Quality
Board (EQB) on July 24, 1990. This request is based
on the fact that the permittee wants that the final
WQC be revised in accordance to the new Water
Quality Standard Regulation which became in effect
on August 20, 1990. In addition, they want that EQB
reconsider again the comments submitted to the In-
tent to Issue a Water Quality Certificate.

At this moment, the EQB is under evaluation of the
PRSOC petition.

(AR, No. 27). PRSOC, through its attorneys, also provided comments
on the draft permit. In a September 10, 1990 letter (AR, No. 29),
PRSOC stated that EPA should not proceed with permit issuance
because PRSOC’s request for reconsideration was still pending at
the EQB. “Until such request is responded thereto by the state agen-
cy, the certification process cannot be deemed to have concluded.”
Id.

In a similar vein, PRSOC’s attorneys sent a September 21, 1990
letter to Region II reasserting that “(u]ntil a decision on the reconsid-
eration request is issued by the EQB, the Water Quality Certificate
cannot be deemed finally effective.” This letter outlined the legal

[A]ny more stringent limitation, including those necessary to meet
water quality standards, treatment standards, or schedules of com-

pliance, established pursuant to any State law or regulations

• *

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PUERTO RICO SUN OIL COMPANY, INC. 305

support for this position (which will be discussed later) and requested
the following:

Thus, PRSOC respectfully requests that the permit-
ting procedure be stayed until EQB finalizes its re-
consideration. In the alternative, PRSOC requests
that EPA comply with the procedures provided in
the NPDES regulations for issuances of such permits
without a finally effective State certification.

Furthermore, the limits included in PRSOC’s current
NPDES permit, as modified in June 1987, should
be maintained. Until mixing zone limits are incor-
porated into the permit, PRSOC would be exposed
to enforcement actions and/or penalties for non-
compliance with the limitations provided in the draft
permit. However, should the current permit limita-
tions be maintained, PRSOC would not be so ex-
posed.

(AR, No. 32). Finally, the letter requested a fifteen-day extension
to submit further technical comments, a request which was not grant-
ed.

PRSOC’s primary concern was that because the EQB was en-
gaged in a mixing zone validation study, the WQC established dis-
charge limitations without a mixing zone.5 PRSOC has stated that
it is unable to achieve the permit limitations set forth in the new
permit due to the lack of a mixing zone. Petition at 5. PRSOC also
objected to the WQC because it allegedly failed to reflect changes
made to the Water Quality Standards Regulations which underlie
it.

On September 28, 1990, EPA issued the final permit (AR, No.
34) and gave public notice of its issuance on October 5, 1990 (AR,
No. 35). The permit was premised on the validity of the July 24,
1990 WQC and reflected its terms. On November 7, 1990, PRSOC
requested an evidentiary hearing on the permit pursuant to 40 C.F.R.
§ 124.74 (AR, No. 37), which request was denied in its entirety by

5A mixing zone allows a person testing the effluent’s effect on the receiving
waters to collect samples downstream of the facility. Since the receiving water acts
to dilute the effluent, the effluent could meet water quality standards at the outer
edge of the mixing zone even if it would exceed those standards at the point of
discharge. The “mixing zone” is thus the area of dispersal in the receiving waters
where the pollutants are not sufficiently diluted to meet water quality standards.

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306 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

the Region II Regional Administrator on June 4, 1992 (AR, No. 44).
This appeal followed.

II. DISCUSSION

Under the rules governing this proceeding, there is no appeal
as of right from the Regional Administrator’s decision. Ordinarily
a petition for review is not granted unless the Regional Administra-
tor’s decision is clearly erroneous or involves an exercise of discretion
or policy that is important, and should therefore be reviewed by
the Environmental Appeals Board. See, e.g., Miami-Dade Water and
Sewer Authority Department, NPDES Appeal No. 91-14, at 5 (EAB,
July 27, 1992); City of Jacksonville, NPDES Appeal No. 91-19, at
4 (EAB, August 4, 1992); 40 C.F.R. § 124.91(a) (57 Fed. Reg. 5336
(Feb. 13, 1992)). The petitioner has the burden of demonstrating
that review should be granted.

The petition for review asserts five bases to support review.
These bases are as follows:

(1) The Regional Administrator erred in finding that
the WQC issued by the EQB on July 24, 1990, was
final;

(2) Puerto Rico did not waive its right to certify;

(3) EPA failed to respond to certain comments sub-
mitted by PRSOC on September 21, 1990;

(4) EPA did not consider new amendments to Water
Quality Standards Regulations promulgated by EQB
on July 20, 1990, in the issuance of the permit; and

(5) PRSOC has a number of technical objections to
various permit conditions.

A. Validity of the Water Quality Certificate

Of these bases, the most significant and the primary focus of
contention between PRSOC and Region II is the first, whether the
Regional Administrator erred in concluding that the July 24, 1990,
WQC was “final” so as to support the issuance of the final permit.

PRSOC bases its argument on the interpretation and application
of the laws of Puerto Rico, most particularly the Public Policy Envi-

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PUERTO RICO SUN OIL COMPANY, INC. 307

ronmental Act, Law No. 9 of June 18, 1970, as amended (12 L.P.R.A.
§ 1134) and the Uniform Administrative Procedure Act, Law No. 170
of August 12, 1988, as amended (3 L.P.R.A. §§ 211 et seq.). Both
of these statutes provide for a motion for reconsideration of an agency
resolution or order. Under Law No. 9, any person adversely affected
by an EQB resolution, order or decision may file a petition for recon-
sideration. Such a petition for reconsideration is a prerequisite to
seeking judicial review. As PRSOC correctly notes, this law further
provides:

The resolution or decision issued by the Board [upon
reconsideration] shall be final and conclusive unless
the party or parties adversely affected shall move
the Superior Court of Puerto Rico, San Juan Part,
for its review within the thirty (30) days following
notice thereof.

12 L.P.R.A. § 1134(d)(2). Therefore, PRSOC asserts that a resolution
or decision, here the WQC, does not become truly final until either
the decision of the EQB on the motion for reconsideration or, if
that decision is appealed to the Superior Court, upon a decision
of that body. Petition at 7-9. In the absence of a final WQC, and
in the absence of a waiver of certification, the issuance of the permit
was invalid.

At the request of this Board, Region II filed a response to the
petition (“response”). In its response, the Region points to a provision
of Law No. 9 which states:

The filing of the petition for reconsideration will not
exempt any person from complying with or obeying
any decision or order of the Board, neither shall it
in any way operate as a suspension or postponement
of its effect, unless so ordered by the Board.

12 L.P.R.A. § 1134(d)(1). The essence of the Region’s response is that
at the time of permit issuance, the Board had not suspended or
postponed the effect of the WQC. Therefore, the WQC could serve
as a basis for a valid permit. Response at 6.

The petition and response both discuss a resolution of the EQB
dated November 28, 1990. This resolution reads in part:

In order that it be determined that the Certificate
of Water Quality in the case at bar be stayed pending

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308 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

the result of the reconsideration submitted before
this Government Board. The Area of Water Quality
shall take all such necessary measures to notify the
Federal Environmental Protection Agency that the
Certificate of Water Quality issued is not to become
final and firm until the Board resolves the reconsid-
eration submitted by the Puerto Rico Sun Oil Com-
pany pursuant to the Public Policy Environmental
Act, 12 LPRA, 113D (sic) and pursuant to the Uni-
form Administrative Procedure Act, Act 170 of Au-
gust 12, 1988, 3 LPRA 2101 et seq.

Board Resolution No. R-90-45-3, as quoted in the denial of the
evidentiary hearing (AR, No. 44) at n.2. In the Region’s view, this
resolution operated to stay the WQC as of November 28, 1990, but
that would not affect the status of the permit which had previously
been issued based on the “valid” WQC. In PRSOC’s view, this resolu-
tion constituted “a determination by EQB stating in writing what
it (sic) was the legal status of this case since the reconsideration
was filed; that the WQC issued by EQB was not final because it
was being contested by PRSOC.” Petition at 15.

PRSOC also points to the September 7, 1990 letter which the
EQB sent to Region II during the comment period. PRSOC states
that this letter informed EPA of the motion for reconsideration and
the fact that the motion was being evaluated by the EQB. Region
II does not contest this but points out that the letter did not state
that the EQB had suspended or postponed the effect of the WQC.

While PRSOC does not agree that the WQC had not been stayed,
it argues that in any event it doesn’t matter if the provisions were
stayed to determine whether the WQC is a final document. “What
determines the finality of the WQC is if the issuance of said WQC
by the State agency is contested or not in accordance with the State’s
laws and regulations.” Petition at 12. PRSOC goes on to say that
“if the WQC can be challenged in the State’s administrative forum
(as, in fact, it is being contested) it follows that it could not be
final, and if the WQC is not final, the NPDES permit could not
be issued under Section 401.” Petition at 12-13.

This is the heart of PRSOC’s argument and we believe it is
flawed. PRSOC is confusing two separate questions. The first is
whether the WQC is “final” in the sense that all appeal rights at
the Commonwealth level have been exhausted. The second is whether
it is “final” in the sense of being an effective certification upon which

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PUERTO RICO SUN OIL COMPANY, INC. 309

EPA could lawfully act. PRSOC appears to believe that the answer
to the first question necessarily dictates the answer to the second.
We disagree.

There is nothing in the statute or regulations which states that
a certification cannot be effective prior to the exhaustion of appeals
at the State level. To the contrary, we note that 40 C.F.R. § 124.55(b)
provides in pertinent part:

If there is a change in the State law or regulation
upon which a certification is based, or if a court
of competent jurisdiction or appropriate State board
or agency stays, vacates, or remands a certification,
a State which has issued a certification under
§ 124.53 may issue a modified certification or notice
of waiver and forward it to EPA. If the modified
certification is received before final agency action on
the permit, the permit shall be consistent with the
more stringent conditions which are based upon
State law identified in such certification. If the cer-
tification or notice of waiver is received after final
agency action on the permit, the Regional Adminis-
trator may modify the permit on request of the per-
mittee only to the extent necessary to delete any
conditions based on a condition in a certification in-
validated by a court of competent jurisdiction or by
an appropriate State board or agency.

(Emphasis added.) This provision discusses what happens if a court
or State agency stays, vacates or remands a certification after the
State has already certified. It even envisions circumstances where
this could occur after the permit, based on that certification, has
already been issued. This circumstance could not occur if PRSOC
were correct that if a certification were challenged in a State adminis-
trative forum, a permit could not be issued because that certification
was not final.

Thus, we find PRSOC’s argument as to the “finality” of the WQC
largely off the mark. We believe the issue is more correctly framed
in terms of the effectiveness of the WQC on the date of permit
issuance.

The key provision in this respect, as Region II correctly notes,

is 12 L.P.R.A. § 1134(d)(1). That provision is quite explicit that the
filing of a motion for reconsideration shall not “in any way” operate

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310 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

as a suspension or postponement of the effectiveness of the Board
order or decision “unless so ordered by the Board.” We find no such
suspension or postponement was in effect at the time of permit issu-
ance.

The September 7, 1990 letter in no way purports to be a suspen-
sion or postponement. The November 28, 1990 resolution did stay
the WQC, but this was fully two months after permit issuance. We
recognize that PRSOC asserts that this resolution was intended to
confirm the legal status of the case “since the reconsideration was
filed.” However, the resolution is at best ambiguous and there is
no EQB action prior to September 28, 1990, which would confirm
that a suspension or postponement was in effect on that date. In
addition, the legal status to which PRSOC refers is the availability
of further administrative review which, as previously noted, is not
the determining factor.

We, therefore, find that the WQC was effective on September
28, 1990, the date the permit was issued, and provided a valid basis
for the permit.

PRSOC also makes three additional points in support of their
argument as to the finality of the WQC which should be addressed
briefly. First, PRSOC discusses at length the important role of the
States under the Clean Water Act and their fundamental role in
the certification process. PRSOC argues that by making a determina-
tion that the WQC was “final” and “valid,” “the Regional Adminis-
trator unlawfully and unilaterally vested himself with the authority
and prerogatives that were granted by Congress to the State’s admin-
istrative and judicial system.” Petition at 11.

That the State has a very important role, through the certifi-
cation process, in the issuance of NPDES permits by EPA is undis-
puted. In this case, due deference was given to the Commonwealth.
It was the EQB which issued the WQC in question. It was the
EQB which described the WQC as “final.” It was the EQB which
did not stay the effectiveness of the WQC until November 28, 1990,
despite the obvious intention of Region II to use the WQC for final
permit issuance, as evidenced by the August 21, 1990 public notice
on the draft permit. Region II only acted to incorporate the terms
of the WQC into its permit, as it is required by law to do.6 Further,
if the terms of the WQC are ultimately changed on appeal, 40 C.F.R.

6 40 C.F.R. § 122.44(d) requires an NPDES permit to conform to and incorporate
any conditions certified by a State agency under 40 C.F.R. § 124.53.

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PUERTO RICO SUN OIL COMPANY, INC. 311

§ 124.55(b) allows the EQB to seek appropriate changes to the permit.
In no way does the Region’s action constitute a usurpation of State
authority or prerogatives.

Second, PRSOC argues that in focusing on whether the WQC
had been stayed as of the date of permit issuance, Region II ignores
the fact that there was no reason for PRSOC to seek a stay since
the conditions in the WQC were not yet enforceable. The WQC condi-
tions were not “self-executing” and were not effective until incor-
porated into a valid permit. Petition at 14.

As this case has shown, PRSOC is mistaken. Under 12 L.P.R.A.
§ 1134(d)(1), the filing of the petition for reconsideration did not “in
any way” operate as a suspension or postponement of the effect
of the WQC. Based on the WQC, Region II clearly indicated its
intention to proceed with final permit issuance. PRSOC obviously
knew, and commented upon, this intention. It is hard to understand
why, under these circumstances, PRSOC concluded that “the issue
to stay or not to stay said conditions was meaningless throughout
that period.” Id. While it may have been meaningless under PRSOC’s
view of the law, it was obvious that Region II felt otherwise and
PRSOC could have sought to protect its interests by seeking a stay
from the EQB immediately upon its filing of the petition for reconsid-
eration. It did not, and must accept the consequences.

Finally, PRSOC asserts that the action of Region II precludes
PRSOC from contesting the WQC in the State’s administrative and
judicial system. This action “voids and moots” the EQB proceeding,
thus depriving PRSOC of its Constitutional right to due process.
Petition at 14-15.

PRSOC is incorrect in this assertion, largely because, as pre-
viously noted, it confuses what is at issue here. Region II has not
purported to make any determination as to the ultimate substantive
correctness of the WQC. Both parties agree that this is a matter
to be determined solely by the State administrative and judicial proc-
ess.7 Region II has only acted on a WQC which was both final and
valid, while recognizing that subsequent State action could ultimately
affect its actions.

7 40 C.F.R. § 124.55(e) provides that “[r]eview and appeals of limitations and condi-

tions attributable to State certification shall be made through the applicable procedures
of the State and may not be made through the procedures in this part.”

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312 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

PRSOC seems to ignore that EPA regulations directly address
the circumstances where a certification is stayed, vacated or re-
manded after permit issuance. As provided in 40 C.F.R. § 124.55(b),
as previously quoted, the regulations allow for a modified certification
reflecting any subsequent State action which can be used as a basis
for an appropriate permit modification. This process was described
to EQB by Region II in a letter of May 17, 1991 (AR, No. 48).
Thus, PRSOC can continue to pursue its appeal through the State
process and the permit can be modified accordingly if it ultimately
proves necessary.8 Therefore, the State proceeding is not mooted and
there is no deprivation of due process.9

For all these reasons, the denial of the evidentiary hearing re-
quest on this issue was proper and the appeal is not sustained.

B. Waiver of Certification

PRSOC’s petition sets forth as a second basis for review that
the Commonwealth did not waive its right to certification. PRSOC
is correct but that is immaterial. Region II’s action was premised
on the Commonwealth’s certification, not a waiver of certification.
PRSOC’s argument would be relevant only if we found that there
was no valid State certification on which Region II could act. Having
found the July 24, 1990 WQC to be a valid basis for the September
28, 1990 permit, this issue is moot and the denial of the hearing
request was proper.

C. Failure to Respond to Comments

PRSOC has alleged that Region II failed to respond to its com-
ments submitted on September 21, 1990 (AR, No. 32). More specifi-
cally, PRSOC notes that in those comments, PRSOC requested that

8 We recognize that the EQB has now stayed the WQC. However, there is nothing
in the record to suggest that a modified certification has been submitted to Region
II under 40 C.F.R. § 124.55(b). It is clear that Region II cannot act on a modified
certification, even if one were issued, until it is officially submitted. Miners Advocacy
Council, NPDES Appeal No. 91-23, at 7 (EAB, May 29, 1992).

9 PRSOC expresses a concern that any proposed modification based on a modified
WQC would be precluded from relaxing the limitations in the September 28, 1990
permit because of the anti-backsliding provisions of the law. CWA §402(0) and 40
C.F.R. § 122.44(1). These provisions require that, in general, when a permit is renewed,
or reissued or modified, that permit must contain effluent limitations which are no
less stringent than comparable effluent limitations in the previous permit. However,
the statute and regulations provide exceptions which could be applicable in this con-
text. We decline to find that the modification provision in 40 C.F.R. § 124.55(b) is
effectively nullified by the application of 40 C.F.R. § 122.44(1).

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PUERTO RICO SUN OIL COMPANY, INC. 313

the permit limits included in PRSOC’s then-current NPDES permit,
modified in June 1987, be maintained. It is this comment to which
PRSOC alleges that Region II failed to respond.

Region II, in the denial of the evidentiary hearing request (AR,
No. 44), cites its response to public notice comments document (AR,
No. 33), response number 6, which it states “generally addressed
PRSOC’s comment.” In that response, the Region discussed its view
of the validity of the WQC as a basis for the issuance of the permit.

In the evidentiary hearing denial, Region II elaborated that
“(wlith a valid WQC in hand, EPA was obligated to include in the
final NPDES permit requirements necessary to conform to the condi-
tions of the WQC (40 CFR § 122.44(dX3)) and not simply maintain
the conditions of a previously issued permit.” AR, No. 44 at 12.
In its petition, PRSOC takes objection to this statement, based on
its view of the invalidity of the Region’s action.

While we find that Region II could have addressed PRSOC’s
comment more completely in its response to comments document,
we believe this was at worst harmless error. As will be seen in
the next section of this opinion, Region II’s basic legal premise is
correct. In addition, it is clear in context that PRSOC is merely
using this basis to rearticulate its central point about the supposed
invalidity of the Region’s reliance on the WQC, a point we have
already addressed at length. Therefore, we find no error in the denial
of the evidentiary hearing request on this basis.

D. Failure to Consider Amendments to Water Quality Standards Reg-
ulations

According to the petition, and unchallenged by the Region, the
Water Quality Standards Regulations (“WQSR”) which formed the
basis for the WQC underlying the permit were amended on July
20, 1990. As represented by PRSOC, the amended WQSR specifies
that the water quality standards are not applicable to effluent but
rather to the receiving water body. “Henceforth, the standards will
no longer be applied at the end of the pipe, as was done in the
case at hand.” Petition at 19. This was, in fact, one of the bases
for PRSOC’s motion for reconsideration of the WQC to the EQB.

In its response to this issue in the denial of the evidentiary
hearing request, the Region reiterated its position that the WQC
was final and adequate and “therefore, any requirements which EQB
included in the final WQC such as end-of-pipe water quality-based

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314 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

limits are required to be included in the final NPDES permit.” AR,
No. 44 at 13. The Region goes on to point out the process for modifica-
tion of a permit based on a modified certification.

It has been held repeatedly that EPA must include the conditions
in a State certification without inquiring as to whether they are
proper or too stringent. Lone Star Steel, NPDES Appeal No. 91-
5, at 3 (CJO, November 25, 1991); Champion International Corp.,
NPDES Appeal No. 90-1, at 6 (CJO, September 5, 1990); see also,
Roosevelt Campobello International Park Commission et al. v. U.S.
EPA, 684 F.2d 1041, 1056 (1st Cir. 1982).

By PRSOC’s own admission, the WQC issued by EQB reflected
the WQSR prior to the cited amendment. As such, the Region had
no choice but to frame its permit based on the regulation as it
stood prior to the amendment. To have done otherwise would have
constituted an impermissible looking behind the certification. If the
EQB believes that the WQC should be changed in light of amend-
ments to the WQSR, it may modify the WQC, allowing for a possible
permit modification. (To the extent that PRSOC finds the permit
modification process inapplicable because there is no currently valid
permit, we have already rejected that argument. To the extent that
it is concerned that the anti-backsliding provision would preclude
a subsequent modification, see note 9 supra.)

Therefore, the denial of the request for an evidentiary hearing
on this basis was proper and the appeal is denied.

E. Technical Objections

PRSOC also identifies 35 technical objections to the permit, deal-
ing with effluent limitations, monitoring requirements, and other
matters. Region II, in its response to the petition, asserts that review
of each of these objections should be denied because it either relates
to a condition included in the WQC, or was not raised during the
public comment period, or both.

As discussed in the previous section, EPA has no authority to
look behind the WQC to determine whether the conditions contained
therein are overly stringent. To the extent that the conditions are
included in the WQC, Region II was required to include them in
the permit.1° Under these circumstances, denial of the evidentiary
hearing request for these objections was appropriate. We find this

10 See note 6, supra.

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PUERTO RICO SUN OIL COMPANY, INC. 315

to be the case for 25 of the technical objections. These are the objec-
tions listed in the petition on pages 21 and 22 as le, 1g, 1h, Jj,
1k, 11, 1m, 1n, lo, 1p, 1q, 1r, 1s, 1t, lu, 2b, 3a, 3b, 3c, 3d, 3e,
3f, 3g, 3i, and 3j.1!

The other reason given by Region II for its denial of the evi-
dentiary hearing request was the failure of PRSOC to raise the tech-
nical objections for which a hearing was being sought during the
public comment period on the draft permit. The Region cites 40
C.F.R. § 124.76, which provides in part:

No issues shall be raised by any party that were
not submitted to the administrative record required
by § 124.18 as part of the preparation of and com-
ment on a draft permit unless good cause is shown
for the failure to submit them.

See Miners Advocacy Council, NPDES Appeal No. 91-23, at 10-11
(EAB, May 29, 1992).

PRSOC disputes the Region’s assertion, citing its two letters of
comment on the draft permit and its letter to the EQB requesting
reconsideration of the WQC. It also argues that even if it is found
to have failed to comment, it had good cause for its failure to do
so.

As previously discussed, PRSOC’s comments on the draft permit
focused almost entirely on the issue of the “finality” of the WQC.
The only technical comment related to PRSOC’s request to continue
the limits from the then-current permit rather than those reflected
in the WQC. The letter to the EQB also, of necessity, focused on
the terms of the WQC.!2 All of the issues raised by these letters
relate to conditions which were included in the permit to be consist-
ent with the WQC, and thus are covered by the previous discussion.

The remaining technical objections were not made during the
preparation of and comment on the draft permit. As such, the Region
is correct that, in the absence of good cause shown, they cannot

11 Region II, in its response to the petition, also lists objection 1i (total chromium)
in this category. However, a review of the WQC does not confirm this. This condition
was included by Region II based on the technology-based effluent guidelines described
in 40 C.F.R. § 419.43 (Petroleum Refining Point Sources). See the letter from Region
II to the EQB dated June 22, 1989 (AR, No. 7) in this regard.

12While not significant to this decision, and contrary to PRSOC’s assertion, we
do not believe that this letter is part of the administrative record for the permit.

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316 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

be raised for the first time in the request for an evidentiary hearing.
These objections are those denominated as la, 1b, 1c, 1d, 1f, 1i,
lv, 2a, 3h, and 3k.

PRSOC states that there is good cause to excuse any failure
to submit comments because “it was totally unexpected that the Re-
gional Administrator, being given notice by petitioner and the EQB
that the WQC was subject to reconsideration, would act contrary
to the law by issuing an NPDES permit without the issuance of
a final WQC.” Petition at 24. We find that this does not establish
good cause.

Good cause, as that term is used in 40 C.F.R. § 124.76, includes:

[The case where the party seeking to raise the new
issues or introduce new information shows that it
could not reasonably have ascertained the issues or
made the information available within the time re-
quired by § 124.15; or that it could not have reason-
ably anticipated the relevance or materiality of the
information sought to be introduced.

PRSOC was well aware that Region II was proceeding with issuance
of a permit based on the July 24, 1990 WQC, notwithstanding
PRSOC’s view of the law. It submitted two comment letters on this
point. In the second letter it requested, belatedly, an extension of
time to submit technical comments, which request was denied. It
could hardly be concluded that the technical issues could not have
been reasonably ascertained or their relevance or materiality reason-
ably anticipated. PRSOC’s failure to provide its technical objections
along with its legal argument cannot be excused under the rubric
of good cause.

Therefore, there are no technical objections that were properly
preserved for review that do not go to requirements of the permit
mandated by the WQC. As such, the denial of the evidentiary hearing
request on this basis was proper.
PUERTO RICO SUN OIL COMPANY, INC. 317

III. CONCLUSION

For all the reasons previously discussed, we find that the Re-
gional Administrator did not err in denying the request for an evi-
dentiary hearing. Accordingly, the petition for review is denied.

So ordered.

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