Alma Plantation, Ltd.

Plain-English summary

Alma Plantation, Ltd. operates a sugar refinery near Lakeland, Louisiana. It challenged the denial of an evidentiary hearing request concerning its NPDES permit, including outfall references, biochemical oxygen demand limits, discharge-limit phases, and a requested variance. The Environmental Appeals Board held that two issues had been preserved during the public-comment period and remanded them for consideration on the merits. It also remanded the BOD issue for the region to determine whether good cause excused Alma's failure to raise it earlier. The Board denied review of the remaining issues because they had not been raised during the comment period and Alma had not shown good cause.

Decision snapshot

• Cited authorities: Clean Water Act § 402(b); 40 C.F.R. §§ 122.62, 124.13, 124.15, 124.18, 124.75, 124.76, and 124.91.
• Outcome: Three issues were remanded for further determinations, and review was denied on the other three.
• Key point: A permit challenger must raise issues during the public-comment period unless good cause applies, and the agency must address preserved or potentially excused issues on the merits.

Full text (EPA EAB public release)

ALMA PLANTATION, LTD. 441

IN THE MATTER OF ALMA PLANTATION, LTD.
NPDES Appeal No. 92-27

ORDER REMANDING IN PART AND DENYING REVIEW IN
PART

Decided December 16, 1992

Syllabus

Alma Plantation, Ltd. (“Alma”) has petitioned for review of the denial by U.S.
EPA Region VI of its request for an evidentiary hearing. The hearing was requested
in conjunction with the issuance to Alma of a National Pollutant Discharge Elimination
System permit for water discharges from its sugar refinery at Lakeland, Louisiana.

Alma raises six issues in its appeal. For three of these issues, Alma argues
that Region VI incorrectly concluded that Alma had not raised the issue during the
comment period on the draft permit. (40 CFR § 124.76 limits the scope of the hearing
request to issues raised during the comment period, absent good cause.) These issues
relate to both the discharge limitations and compliance dates. For two other issues,
relating to Outfall 002 and to the form of the Biochemical Oxygen Demand (“BOD”)
limits, Alma asserts good cause for its failure to comment during the comment period.
Region VI rejected this assertion in denying the hearing request. Finally, Alma raises
one issue, relating to a requested variance from the technology-based effluent limita-
tions, which it says that Region VI failed to address in its denial letter.

Held: Alma’s comments on the draft permit raised, and thus preserved for its
hearing request, two of the issues raised on appeal. These issues relate to adjusting
the Phase A (interim) discharge limits to reflect higher anticipated grinding rates
and extending the applicability of the Phase A limits beyond August 31, 1990. These
issues are remanded to Region VI so the Region can address the evidentiary hearing
request for these issues on the merits. In addition, one of the remaining issues,
relating to the form of the BOD limits, is remanded to the Region to determine
if good cause exists for Alma’s failure to raise it during the comment period. Region
VI’s denial of the request as to the other three issues was not erroneous since those
issues were not raised during the comment period and Alma has not shown good
cause for not raising them.

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442 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

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

Opinion of the Board by Judge Reich:

Alma Plantation, Ltd. (“Alma”) seeks review of the denial of
its evidentiary hearing request by U.S. EPA Region VI in conjunction
with the issuance to it of a National Pollutant Discharge Elimination
System (“NPDES”) permit. The NPDES permit authorizes discharges
from Alma Plantation’s sugar refinery one half mile east of Lakeland,
Louisiana to receiving waters named Stumpy Bayou and Poydras
Bayou, parts of the Terrebonne Basin. The facility is engaged in
the grinding, milling and processing of sugarcane into raw sugar,
molasses and bagasse. The denial of the evidentiary hearing was
timely appealed to the Board pursuant to 40 CFR § 124.91, 57 Fed.
Reg. 5336 (Feb. 13, 1992).

I. BACKGROUND

The final permit decision in question was issued pursuant to
40 C.F.R. § 124.15 on February 2, 1990. The permit establishes efflu-
ent discharge limitations for the combined pollutant load from three
outfalls, denominated Outfalls 001, 002 and 003. The effluent limita-
tions are primarily for Biochemical Oxygen Demand (“BOD”) and
Total Suspended Solids (“TSS”). These limitations establish both mass
loading limitations (in terms of daily average and daily maximum)
and a concentration limitation (daily maximum) for each of these
effluent characteristics. Two different sets of limitations are estab-
lished, Phase A (interim) limitations which are effective from permit
issuance through August 31, 1990, and more stringent Phase B limi-
tations which are effective from September 1, 1990, to the date of
expiration (March 2, 1995) (AR 00023-00028).

A draft permit for the Alma Plantation was noticed for public
comment on December 10, 1988 (AR 00073). Alma provided comments
on the draft in an undated letter from Harold G. Leggett, Gulf Engi-
neers and Consultants to Ms. Ellen Caldwell of Region VI (AR 00066—
68), received on January 31, 1989. There was one substantial change
from the draft to the final permit, in that the discharge limitations
in the final permit were based on a State water discharge permit
issued on August 23, 1989.1 As previously noted, the final permit
decision was issued on February 2, 1990.

1While the State issued its own permit, it was not an authorized State under

Section 402(b) of the Clean Water Act, 33 U.S.C. §1342(b), and therefore a Federal
permit was still required.

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ALMA PLANTATION, LTD. 443

Alma requested an evidentiary hearing by letter of March 5,
1990, setting forth seven issues.2 In its response,3 Region VI denied
this request in its entirety. Alma has appealed the denial as to
six of these seven issues. As to all issues of relevance here, Region
VI gave the same reason for its denial. Region VI stated:

Alma did not raise this issue during the comment
period as provided by 40 CFR §§ 124.13 and 124.76,
and has not asserted “good cause” for failing to raise
the issue during the public comment period, as pro-
vided by 40 CFR §124.76. Therefore, your request
for a hearing on this issue is denied.

Region VI relied on the requirements of 40 CFR § 124.76, which
provide in pertinent 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. Good cause 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.

See Puerto Rico Sun Oil Company, NPDES Appeal No. 92-20, at
16 (EAB, Oct. 23, 1992).

In its petition for review,4 Alma argues that the denial was
clearly erroneous in that three issues were in fact raised during
the comment period and two others were not reasonably ascertain-
able, and thus subject to the good cause exception. Alma also asserts
that the sixth issue was not addressed in the Region’s denial.

2Letter from James C. Carver, Attorney for Alma Plantation, Ltd. to Ms. Ellen
Caldwell, U.S. EPA Region VI (AR 00001-3).

3Letter from B.J. Wynne, Regional Administrator, U.S. EPA Region VI to James
C. Carver, dated July 22, 1992 (AR 00004—7).

4Notice of Appeal and Petition for Review of Denial of a Request for Evidentiary
Hearing; Alma Plantation, Ltd. (NPDES Permit No. LA 0003034), dated September
17, 1992.

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444 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

At the request of the Board, Region VI submitted a response
to the petition. In its response, the Region reiterated its reasons
for the denial and disputed some of Alma’s assertions about the
nature of its comments on the draft permit.

II. DISCUSSION

The issues before the Board are relatively simple. The only rea-
son given for the denial of the hearing request was that each issue
had not been properly preserved for review. We must determine on
appeal whether, as to each issue, it was raised during the comment
period or good cause exists for its failure to be raised. If it was
raised, or good cause exists, Region VI’s denial was in error. For
the reasons discussed in this opinion, we conclude that Region VI
erred in finding that two of the issues had not been raised in Alma’s
comments on the draft permit. We further conclude that Region VI
must determine whether good cause exists for Alma’s failure to raise
a third issue. We reject Alma’s claims as to the remaining three
issues.

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., City of Denison, NPDES
Appeal No. 91-6, at 5 (EAB, Dec. 8, 1992): Puerto Rico Sun Oil
Company, supra, at 5; 40 CFR §124.91(a), 57 Fed. Reg. 5336 (Feb.
13, 1992). The petitioner has the burden of demonstrating that review
should be granted.

The first basis for appeal was Region VI’s inclusion in the permit
of a reference to Outfall 002. Alma asserts that this is erroneous
because Outfall 002 no longer exists. While it concedes that this
issue was not raised during the comment period, it states that it
was using Outfall 002 at that time and only subsequently took it
out of service. As such, Alma argues that good cause exists for its
failure to raise this issue. Petition for Review at 2-3.

The Region, in its response, states that “Petitioner has not shown
that it could not have reasonably ascertained this issue during the
comment period. If anyone could have known that Outfall 002 would
shortly be taken out of service, it would have been Petitioner.” Re-

5 Response to Petition for Review, dated November 9, 1992.

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ALMA PLANTATION, LTD. 445

sponse to Petition at 4. The Region suggests that the permit modifica-
tion provision at 40 CFR § 122.62 is a more appropriate vehicle to
deal with this circumstance. Id.

Alma’s comments on the draft permit were undated but were
received by Region VI on January 31, 1989. In its March 5, 1990
request for an evidentiary hearing, Alma indicated that it had already
eliminated Outfall 002 wastewater from evaporator pan cleaning and
wash down, consolidating it with the stabilized cane wash water
at Outfall 003. The Administrative Record does not show the precise
date during this period on which use of Outfall 002 was eliminated.

Alma has given no reason whatsoever for its failure to anticipate
the shutdown of Outfall 002, an event within its own control. As
such, it has failed to meet its burden of showing that this issue
was not reasonably ascertainable and review of this issue is denied.6

The other issue which Alma concedes that it did not raise during
the comment period but for which it asserts good cause relates to
the BOD limits of the permit. Alma believes EPA should have granted
net limits rather than gross limits. Alma states that it did not realize
until it received a consultant report in February of 1990 that the
well water used for its barometric condenser was high in BOD. There-
fore, it believes it had good cause for failing to raise this issue
during the comment period. Petition for Review at 4-5.

The Region, in its response, points out that the engineering con-
sultant report cited by Alma” indicates that the samples showing
the high levels of BOD were taken in response to a request during
a meeting of January 8, 1990 between Gulf Engineers & Consultants
(acting on behalf of Alma) and the Louisiana Department of Environ-
mental Quality. We note further that the consultant’s letter, in de-
scribing that meeting, states the following:

As we discussed, Gulf Engineers & Consultants, Inc.
(GEC), acting on behalf of Alma, was concerned that
Alma could not comply with their upcoming permit

6See City of Denison, supra, at 13. It is unclear what the practical effect of
the references to Outfall 002 is since all discharge limitations apply to the combined
pollutant load from Outfalls 001, 002, and 003. Permit Part 1, Section A (AR 00024—
27). However, Alma may wish to pursue a permit modification as suggested by the
Region if it wants the references to Outfall 002 deleted.

7Letter from Chris Ingram, Gulf Engineers and Consultants to Richard Duerr,
Permits Section, Louisiana Department of Environmental Quality, dated February
26, 1990.

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446 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

limitations for BOD because of excessive concentra-
tions of BOD in their source water.

This meeting occurred approximately one full year after the sub-
mission of Alma’s comments. There is nothing in the record discussing
this issue prior to that date. This does not necessarily mean that
the issue was not “reasonably ascertainable” at an earlier date. How-
ever, the Region has not addressed Alma’s contention that the issue
was not reasonably ascertainable. It rejected Alma’s evidentiary hear-
ing request without discussing whether good cause exists for Alma’s
failure to raise this issue.8 Further, the Region’s response to the
petition for review is premised on the misstatement that Alma’s com-
ments were received on January 31, 1990 (after the January 8, 1990
meeting), rather than the correct date of January 31, 1989.9 There-
fore, it is not clear whether the Region’s denial was also premised
on an incorrect understanding of the facts. For this reason, we are
remanding this issue to the Region to determine whether the issue
was reasonably ascertainable as of the time of the comment period.
If it was not reasonably ascertainable, Alma’s hearing request must
be addressed on the merits.

Alma also identifies one issue which it indicates that Region
VI did not address in its denial. This issue was a request for a
hearing to determine if Alma was entitled to a variance from the
technology based effluent limits. Petition for Review at 6. However,
a review of the denial clearly shows that this issue was addressed.
The request for a hearing was rejected because the issue had not
been raised during the comment period or good cause shown for
failure to raise it (AR 00006). Alma has not shown why this was
in error and, in fact, a review of Alma’s comments on the draft
permit confirms that this issue was not raised. Therefore, the petition
for review as to this issue is denied.

The other three bases for the appeal involve issues where Alma
asserts that its comments on the draft permit were sufficient to
preserve the issue and Region VI disagrees. We will discuss each
of these in turn.

The first of these issues involves Alma’s assertion that the mass
loading limits should be raised for both BOD and TSS. Alma states

8 AR00006. The Region is technically correct that Alma did not specifically assert
good cause, although Alma’s request makes clear that it only “recently” discovered
the problem with the BOD source water (AR00002).

9 Response to Petition at 7.

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ALMA PLANTATION, LTD. 447

that in its comments, it requested that the permit limits be based
on the expected grinding rates for the 1988 and 1989 seasons. It
further states that “[i]t is clear that the only reason one would need
to consider the grinding rates would be because the mass loading
limits should be increased as the grinding rates are increased.” Peti-
tion for Review at 4.

In response, Region VI quotes from Alma’s comments and points
out that there was no mention of BOD and TSS. Response to Petition
at 6.

In its comments, Alma stated that “[wJhen Alma Plantation ap-
plied for renewal of it’s [sic] NPDES permit insufficient information
was available regarding the total tonnage of sugar cane which was
anticipated to be ground.” It then discussed the grinding rate for
the recently completed 1988 season and the anticipated rate for the
1989 season. It concluded by stating that “Alma Plantation feels
that the permit limits should reflect these anticipated grinding rates”
(AR 00067).

As previously noted, the discharge limitations in the permit re-
late to BOD and TSS, and include limits on the maximum amount
of daily discharge in terms of lbs/day. The amount of daily discharge
necessarily relates to the tonnage of sugarcane processed on that
day. If the daily average grinding rate is higher than originally pro-
jected, this will result in higher levels of discharges in terms of
lbs/day.

While the Region is correct that Alma did not specifically mention
BOD and TSS, we believe the reference to “permit limits” in Alma’s
comments was specific enough to call these limits into question. Alma
clearly requested a reconsideration of these limits based on the higher
anticipated grinding rates. To the extent that Alma’s request for
an evidentiary hearing raises the same issue, Region VI’s denial
based on the conclusion that the issue had not been previously raised
was erroneous. For this reason, we remand this issue to Region
VI to make a determination on the merits as to whether an evi-
dentiary hearing is appropriate.10

The next issue involves Alma’s request for a hearing because
“the period during which the original permit was issued was incon-

10In determining whether an evidentiary hearing is appropriate, the Regional

Administrator must determine whether the request sets forth any material issues
of fact. 40 CFR § 124.75(a)(1). We express no opinion as to this determination.

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448 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

sistent with the period of time during which Alma operated.” It
is unclear exactly what Alma means by this. Alma says this issue
was raised in its comments through a request that the final permit
reflect a construction and compliance schedule consistent with that
produced by the State. Petition for Review at 5-6. The Region, in
its response to the petition, states that “Alma does not refer [in
its comments] to any state enforcement action by the State of Louisi-
ana. It only refers to the enforcement action by EPA.” Response
to Petition at 8.

This issue is most clearly articulated in the request for an evi-
dentiary hearing, where Alma stated:

In Part 1, Phase A, Alma objects to the discharge
limitations not lasting beyond August 31, 1990. This
part of the permit, as written, would be moot since
it only regulates from March 3, 1990 through August
31, 1990, and the sugar refinery only operates in
the fall and early winter months, beginning after
August 31, 1990. Alma requests that this discharge
limit be extended for the duration of the permit.

AR 00002. As the permit is presently structured, Phase A limits
would apply from the date of issuance through August 31, 1990,
and the significantly more restrictive Phase B limits would apply
thereafter until the expiration date of the permit (AR 00024 and
00026).

Region VI is correct that in Alma’s comment 2, Alma referenced
only a consent decree signed with Region VI. This consent decree
would require development of a multi-year construction schedule to
achieve compliance with environmental regulations. Alma requested
that “any permit issued to Alma Plantation should reflect ongoing
enforcement action” and that the phase schedules “should coincide
with the construction milestones approved by the Enforcement
Branch” (AR 00067). This, presumably, is the basis for arguing for
an extension of the Phase A (interim) limitations.

However, Alma does mention in the transmittal letter to its com-
ments the issuance of an administrative order by the State, the

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ALMA PLANTATION, LTD. 449

fact that the multi-year construction schedule is being developed in
close cooperation with EPA and the State, and that the schedule
will ultimately need to be approved by both EPA and the State
(AR 00066).11 In any event, irrespective of the references to the
State, Alma’s reference to the EPA consent decree and its desire
to adjust the phases of the permit in light of this consent decree,
raised the issue of whether the Part A limitations should extend
beyond August 31, 1990. Thus, we remand this issue to Region VI
to address it on the merits. Because the relationship between the
construction schedule and the permit compliance schedule is not ex-
plained in the record before us, we express no opinion as to the
substance of this determination.

The final issue raised in the petition for review relates to an
assertion by Alma that Region VI erred by issuing a permit that
was inconsistent with a permit modification issued by the State re-
garding both concentration and mass loading limitations. Alma indi-
cates that it raised this issue during the comment period by request-
ing a compliance schedule with interim limits to comport with those
agreed to by the State. Petition for Review at 3. The Region disputes
that Alma made such a request. Response to Petition at 4-5.

Alma did raise in its comments an issue with respect to the
stringency of the interim limitations. However, the comment indicates
that the interim limits which Alma is requesting “are dependent
upon the facility modifications and environmental controls which
EPA’s Enforcement Branch and Alma Plantation develop” (AR 00068).
There is no reference to a State permit modification, either in the
comment or the transmittal letter.12 As such, we find that this issue
was not preserved and the denial of the evidentiary hearing was
not in error.

11The letter also indicates that the schedule will bring Alma Plantation into
compliance by October 1993. It is unclear why Alma asks for the Phase A interim
limitations to be extended for the duration of the permit, which expires on March
2, 1995.

12It is not clear from the Administrative Record what permit modification Alma
refers to. As previously noted, the EPA permit was consistent with the permit issued
by the State on August 23, 1989. However, Alma’s evidentiary hearing request does
mention a proposed State variance for the 1990 grinding season (AR 00001-2), and
this may be the “permit modification” to which this issue is addressed. If so, this
issue may now be moot.

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450 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

II. CONCLUSION

In conclusion, this matter is remanded to Region VI to make
a further determination of the appropriateness of an evidentiary hear-
ing on the three issues identified herein. Review of the other three
issues is denied.

So ordered.

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