Florida Pulp and Paper Association and Buckeye Florida, L.P.

Plain-English summary

Buckeye Florida and the Florida Pulp and Paper Association challenged parts of an EPA renewal permit for a pulp mill in Perry, Florida. Buckeye argued that EPA could not require certain sludge sampling, lacked an accepted protocol for crab-tissue analysis, and used an improper compliance schedule tied to an individual control strategy. The Association argued that the permit used unrepresentative species for chronic-toxicity testing. The Environmental Appeals Board held that most issues were not preserved or were not material to the permit decision, and that the permit did not impose an individual control strategy because the statutory prerequisites were absent. It remanded the test-species issue for an evidentiary hearing because the concern had been raised sufficiently and involved a genuine issue of material fact.

Decision snapshot

• Cited authorities: Clean Water Act §§ 301(b)(1)(C), 304(l), 401(a)(1), and 402; 40 C.F.R. §§ 122.44(d), 123.46(c), 124.13, 124.19, 124.53, 124.55, 124.74, 124.75(a)(1), 124.76, and 124.91(a)
• Outcome: Review was denied on the other issues, and the test-species issue was remanded for an evidentiary hearing.
• Key point: A permit challenge can require an evidentiary hearing when a sufficiently specific comment raises a genuine issue of material fact.

Full text (EPA EAB public release)

FLORIDA PULP AND PAPER ASSOCIATION 49
IN RE FLORIDA PULP AND PAPER ASSOCIATION

& BUCKEYE FLORIDA, L.P.

NPDES Appeal Nos. 94-4 & 94-5

ORDER DENYING REVIEW IN PART
AND REMANDING IN PART
Decided May 17, 1995
Syllabus

Buckeye Florida, L.P. and the Florida Pulp and Paper Association (“FPPA”) seek review of
the partial denial of their evidentiary hearing requests on certain issues relating to the renewal
of an NPDES permit by U.S. EPA Region IV for Buckeye’s pulp mill in Perry, Florida. The
renewed permit regulates the discharge of effluent from the facility into the Fenholloway River.
Buckeye has appealed the denial of its evidentiary hearing request on the following three issues:
1) Whether the Region had the legal authority to require sampling and analysis of sludge; 2)
Whether there is an accepted, validated protocol for analyzing ambient crab tissue, and, if not,
whether the Region improperly required Buckeye to prepare a plan of study for such analysis;
and 3) Whether the Region improperly imposed an Individual Control Strategy (“ICS”) under
CWA § 304(l) and, assuming the Region did impose an ICS, whether the Region misapplied sec-
tion 304(l) in establishing the schedule of compliance. FPPA seeks review on two issues. These
are: 1) Whether the Region has improperly imposed an ICS; and 2) Whether the species of
organisms proposed for use in chronic toxicity tests are representative of species inhabiting
waters affected by the discharge.

Held: The issue of whether the species of organisms proposed for use in chronic toxicity
tests are representative of species inhabiting waters affected by the discharge is remanded so
that an evidentiary hearing can be conducted. In its comments on the draft permit, FPPA stated
that the proposed species may not be representative of species affected by Buckeye’s discharge.
In its denial of FPPA’s hearing request on this issue, the Region stated that the issue was not
raised with sufficient specificity. However, because the issue was sufficiently well-defined to
elicit a substantive response from the Region, and because another commenter raised the same
issue (and also elicited a substantive response), we reject the Region’s assertion that the issue
was not raised with sufficient specificity. The issue of whether a permit’s designated test species
are suitable surrogates for indigenous species is a genuine issue of material fact which, if ade-
quately raised, requires an evidentiary hearing. With respect to the other issues raised in the
petitions filed by Buckeye and FPPA, review is denied. The first two issues raised by Buckeye
were not raised in its comments on the draft permit and thus were not preserved for hearing.
With regard to the third issue relating to the permits three-year compliance schedule, the Board
concludes: 1) the Region did not, nor could it have, imposed an ICS, and 2) the issue relative
to how a compliance schedule should be established under section 304(l) is therefore not a
material issue relevant to issuance of the permit. FPPA’s request for a hearing on the § 304(l)
issue was appropriately denied by the Region since, as a matter of law, the Board concludes

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50 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
that the Region did not (and indeed could not) impose an ICS on the Buckeye facility because
the statutory prerequisites for imposing an ICS were not met as to that facility.

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

Opinion of the Board by Judge Reich:

I. BACKGROUND

Buckeye Florida, L.P. and the Florida Pulp and Paper Association
(“FPPA”) have each filed a petition seeking review of U.S. EPA Region
IV’s partial denial of their evidentiary hearing requests on certain pro-
visions of a renewed National Pollutant Discharge Elimination System
(NPDES) permit' for Buckeye’s pulp mill in Perry, Florida, known as
the “Foley Mill.” Buckeye? operates an industrial wastewater treatment
system at the facility which includes, among other things, a primary
clarifier, sludge pumps, a sludge storage lagoon, and two aerated
lagoons. The renewed permit regulates the discharge of effluent from
the facility into the Fenholloway River. At the request of the
Environmental Appeals Board, the Region filed a response to each of
the petitions for review.

The facility’s existing NPDES permit became effective on July 1,
1984, with an expiration date of June 30, 1989. On June 24, 1991, the
Region prepared a draft permit renewal on which both petitioners
submitted comments. By letter dated August 5, 1991, the State of
Florida waived certification of the draft permit based on the under-
standing that the final permit would reflect the use of 100% effluent
for conducting chronic toxicity tests.* See Region IV's Fact Sheet
Amendment Based on Comments Received: July 11, 1991 - September
26, 1991, at 1, 3 June 26, 1992) (Exh. 2 to Region's Brief in

' Under the Clean Water Act. discharges into waters of the United States by point sources,
like the Foley Mill, 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.

• The evidentiary hearing request which is the subject of Buckeye’s petition was actually
  submitted by the Procter & Gamble Cellulose Company, the former owner of the Foley Mill. On
  March 16, 1993, after the request was filed, Buckeye Florida, Limited Partnership purchased the
  Foley Mill from Procter & Gamble. Buckeye then’ notified the Region that it wished to be sub-
  stituted for Procter & Gamble on the hearing request and indicated its intent to raise each of the
  issues raised by Procter and Gamble in the hearing request. As Buckeye has stepped into the
  shoes of Procter & Gamble, the remainder of this decision refers only to Buckeye, even though
  certain of the actions were actually taken by Procter & Gamble.

• The Region included such a provision in the final permit.

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FLORIDA PULP AND PAPER ASSOCIATION 51
Opposition to [Buckeye’s] Petition for Review (“Region’s Buckeye
Response”)).' A public hearing was held on September 19, 1991, at
which additional comments were received. The Region responded to
comments in an attachment to the above-cited fact sheet amendment
(“Response to Comments”). A final renewal permit was issued on June
26, 1992. In late July of 1992, both FPPA and Buckeye submitted evi-
dentiary hearing requests.> In response to the Region’s request for
additional information on certain issues, Buckeye submitted a revised
request for an evidentiary hearing dated November 24, 1992, On June
30, 1994, the Region granted in part and denied in part both requests.°
The present appeals followed.

For the reasons stated below, the petition for review filed by
Buckeye is denied. The petition filed by FPPA is denied in part and
granted in part.

II. DISCUSSION

Under the rules governing an NPDES proceeding, there is no
appeal as of right from the Regional Administrator's decision. In re
J&L Specialty Products Corporation, 5 E.A.D. 31, 41 EAB 1994).
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 therefore be
reviewed by the Environmental Appeals Board.’ See, e.g., In re Town
of Seabrook, N.H., 4 E.A.D. 806 (EAB 1993). The petitioner has the

"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. 40 CFR. §
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, 4 E.A.D. 408 (EAB
1993). Where a State has waived certification, however, the Agency's application of State water
quality standards is open to review for consistency with 40 C.F.R. § 122.44(d) (Water quality stan-
dards and State requirements).

• Under 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.

® On the same date the Region granted a request for an evidentiary hearing filed by a cit-
izen’s group known as Help Our Polluted Environment or “HOPE.”

• 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 QGune 7,
  1979). While the Board has broad power to review decisions in NPDES permit cases, the Agency
  intended this power to be exercised “only sparingly.” Id. See In re J & L Specialty Products
  Corporation, 5 E.A.D. 31, 41 (EAB 1994); I re Broward County, Florida, 4 E.A.D. 705, 709 n.9
  (EAB 1993).

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52 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
burden of demonstrating that review should be granted. See 40 C.F.R.
§ 124.91(a). In determining whether petitioners have met this burden,
we first address the issues raised in Buckeye’s petition and then those
raised by FPPA.
A. Buckeye Petition
In its petition, Buckeye objects to the Region's denial of
Buckeye’s evidentiary hearing request with regard to the following
issues:*
1) Whether EPA has the legal authority to require sam-
pling and analysis of sludge. Whether sampling of
sludge is necessary for determining compliance with
effluent limits and whether imposition of such sam-
pling is authorized by the CWA and 40 C.F.R. Part 122;
2) Whether there is an accepted, validated protocol for
analyzing ambient crab tissue for dioxin and, if not,
whether it is unreasonable, arbitrary, capricious
unsupported by substantial evidence or an abuse of
the administrator’s discretion, to require Buckeye to
prepare and implement a plan of study for such analy-
sis; and
3) Whether the Clean Water Act requires EPA to
include a compliance deadline no later than October 1,
1995 for dioxin effluent limits.
These will be discussed in turn below.

1. Sludge Sampling
   Part VI. Section A. of the final NPDES permit requires that
   Buckeye monitor once per quarter the influent, effluent, and primary
   sludge from its wastewater treatment facility for 17 isomers of poly-
   chlorinated dibenzo-p-dioxins and polychlorinated dibenzofurans. In
   issue 8(h) of its evidentiary hearing request, Buckeye contested the
   Region’s legal authority to require sampling of influent or sludge. See
   Buckeye’s Revised Request for Evidentiary Hearing at 13 (Exh. E to
   Buckeye’s Petition for Review). Buckeye essentially repeated this
   assertion later in its hearing request (issue 10(n)). Issue 10(n) states:
   * Buckeye raised several additional issues in its petition on which the Region subsequently
   agreed to grant an evidentiary hearing. We therefore do not address those issues in this decision.
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FLORIDA PULP AND PAPER ASSOCIATION 53

“Whether sampling of treatment plant influent and sludge is necessary
for determining compliance with effluent limitations and whether
imposition of such sampling is authorized by the Clean Water Act and
40 C.F.R. Part 122.” Id. at 33 (issue 10(n)). In elaborating on this asser-
tion, Buckeye stated as follows:

EPA is without authority to require the above-referenced

sampling unless determining compliance with effluent

limitations is otherwise impracticable. [Buckeye] asserts

that compliance with its permit’s effluent limitations can

be assessed without sampling of its wastewater treat-

ment plant influent or sludge and, therefore, that such

requirements are unauthorized as described above.
Id.

The Region granted a hearing only with regard to the sampling
requirement for influent. That is, the Region granted a hearing on the
issue of whether EPA has the legal authority to require sampling and
analysis of influent to the wastewater treatment plant. With regard to
the sludge sampling requirement, the Region denied Buckeye’s hear-
ing request on the grounds that this issue was not raised during the
public comment period and Buckeye had not established good cause
for failing to raise the issue. See Regional Administrator's Decision on
Proctor & Gamble’s Request for an Evidentiary Hearing (“Response to
Buckeye’s Hearing Request”) at 4 and Enclosure at 3. (Exh. A to
Buckeye’s Petition for Review).

Under 40 C.F.R. § 124.13, any person who believes that a permit
condition is inappropriate must raise “all reasonably ascertainable
issues and * * * all reasonably available arguments supporting [the per-
son’s] position by the close of the public comment period.” In order
to contest a final permit condition in an evidentiary hearing, that con-
dition must first be identified during the comment period. 40 C.F.R.
§ 124.76. See In re Goodyear Tire & Rubber Company, 4 E.A.D. 670,
681-682 (EAB 1993). As the Board has previously stated, adherence to
this requirement is necessary to ensure that the Region has an oppor-
tunity to address potential problems with the draft permit before the
permit becomes final, thereby promoting the Agency’s longstanding
policy that most permit issues should be resolved at the Regional
level. See In re Essex County (NJ) Resource Recovery Facility, 5 E.A.D.
218, 224 (EAB 1994); In re Broward County, Florida, 4 E.A.D. 705, 714
(EAB 1993); In re Sequoyah Fuels Corporation, 4 E.A.D. 215, 218 (EAB
1992). The permit issuer can then make any appropriate revisions to
the permit or provide an explanation of why no such revisions are

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54 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

necessary. The regulations provide for a “good cause” exception to
this rule where a party “could not reasonably have ascertained the
issue * * * within the required time * * * or reasonably anticipated the
relevance or materiality of the information sought to be introduced.”
40 C.F.R. § 124.76. See In re Goodyear Tire & Rubber Company, supra,
at 682.

In its Petition for Review, Buckeye contends that, contrary to the
Region's assertion, the issue of whether the permit properly includes
a sludge monitoring requirement was raised in Buckeye’s comments
submitted on August 9, 1991. The comments cited by Buckeye read
as follows:

[Buckeye] believes that the requirements for testing of

various isomers and cogeners of chlorinated dibenzodi-

oxins and dibenzofurans are unnecessary and inappro-

priate. Extensive testing of pulp mill effluents * * * has

demonstrated that 2,3,7,8-TCDD is responsible for the

vast majority of the toxic equivalents found in bleached

pulp mill discharges, and the reduction of 2,3,7,8-TCDD

at some mills has resulted in similar levels of reduction

in other isomers and cogeners. Thus, the additional iso-

mer-specific analyses are not necessary.
Buckeye’s August 9, 1991 Comments at 17 (Exh. C to Buckeye’s
Petition for Review). While this comment raises a general objection to
the need for the permit’s dioxin testing, the objection is based on
Buckeye’s assertion that the proposed testing requirements for various
isomers and cogeners of chlorinated dibenzodioxins and dibenzofu-
rans are unnecessary because the levels of these compounds can be
adequately accounted for by monitoring of 2,3,7,8-TCDD (which is
also required by the permit). There is no suggestion in these comments
that sludge monitoring or analysis, by itself, would be unlawful.

In fact, Buckeye’s comment goes on to state:

In addition, there is no need to sample influent to the
wastewater treatment plant, since the only two avenues
for discharge of dioxin are through the effluent from the
wastewater treatment plant or through sludge disposal,
and both these vectors are required to be analyzed sep-
arately. It should also be noted that the [permit’s] ref-
erence to the “primary sludge after dewatering” is a bit
inaccurate; the mill’s wastewater treatment system has
no mechanical dewatering of primary sludge, so we

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FLORIDA PULP AND PAPER ASSOCIATION 55
suggest that this be changed to “primary sludge after fil-
tration,” to indicate that the sample will have to be fil-
tered in the laboratory to obtain a representative sample
of semi-solid sludge material.)

Id. at 18. Thus, while objecting to the sampling requirement for influ-
ent to the wastewater treatment facility, Buckeye’s comment suggests
that it recognized that at least some sludge testing might be appro-
priate. Buckeye’s concern was that the testing of influent was unnec-
essary because the permit already required the testing of sludge and
effluent. There is no suggestion that any sludge testing requirements
would be improper. In fact, Buckeye suggested that the reference to
“primary sludge after dewatering” in the disputed portion of the draft
permit be changed to “primary sludge after filtration,” which further
indicates that Buckeye was not challenging the permit’s inclusion of
all sludge testing requirements.’

In these circumstances, Buckeye did not preserve for review its
objections to the lawfulness of the permit’s sludge testing require-
ment. Moreover, Buckeye does not assert that the Board should con-
sider its objections to the sludge testing requirement under the “good
cause” exception mentioned above. For these reasons, the Region's
decision to deny an evidentiary hearing on the permit’s sludge testing
requirements will not be reviewed by the Board.'°

2. Crab Analysis Protocol

Issue 10¢m) of Buckeye’s evidentiary hearing request states as
follows:

Whether there is an accepted, validated protocol for
analyzing ambient crab tissue for 2,3,7,8-TCDD and, if

° In its petition, Buckeye asserts that its statement in this regard was not intended as a con-
cession of the appropriateness of the permit’s sludge testing requirements. Rather, Buckeye
asserts that this statement was proffered “in support of limiting the provision as an alternative”
to its general objection to sludge testing. However, nothing in Buckeye’s comment concerning
the change in the permit’s language (from “primary sludge after dewatering” to “primary sludge
after filtration”) suggests that it was intended merely as an alternative argument. We also note
that the wording in the final permit reflected Buckeye’s comment in this regard.

" Buckeye’s petition also asserts that the Region erroneously failed to stay the sludge and
effluent monitoring and sampling requirements of Part VI. Section A. of the final permit even
though the Region granted Buckeye’s request for an evidentiary hearing on this permit condi-
tion. As the Region states in its response, however, the evidentiary hearing request was granted
only with regard to the sampling requirements for influent. See Region’s Buckeye Response at

18. Thus, we find no error in the Region’s decision to limit a stay of this permit condition to
    those requirements applicable to influent to the facility.

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56 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

not, whether it is unreasonable, arbitrary, capricious,

unsupported by substantial evidence, or an abuse of the

Administrator’s discretion to require [Buckeye] to pre-

pare and implement a plan of study for such analysis.
Buckeye’s Evidentiary Hearing Request at 32. This issue pertains to
Part VI. Section B.1. of the final permit which requires that Buckeye
develop “a Plan of Study (POS) to annually assess the levels of all
chloro-dibenzo dioxins and furans in ambient fish and shellfish (crab)
tissue in the Fenholloway River at the confluence with the Gulf of
Mexico.” The Region denied the hearing request on the grounds that
the issue was reasonably ascertainable but was not raised during the
comment period. See Response to Buckeye’s Hearing Request,
Enclosure at 15-16.

In its petition for review, Buckeye asserts that it raised this issue
in comments on the draft permit submitted on July 8, 1991, in which
Buckeye raised a general objection to the plan of study requirement.
Buckeye Petition for Review at 7. In particular, Buckeye’s petition
states as follows:

Referencing {in Buckeye’s July 8, 1991 comments] the
fact that a Use Attainability Analysis addressing the
same concerns as the Plan of Study was currently
being prepared in cooperation with the state of
Florida, Buckeye made a general objection to the Plan
of Study requirement “because it contains excessively
detailed requirements which may or may not be
appropriate for the study plan which is being devel-
oped. The draft permit should merely state the goals of
the study and require that a plan be developed in con-
junction with and approved by EPA and Florida
[Department of Environmental Regulation].”
Id. at 7-8. What Buckeye fails to mention is that the permit provision
to which it was objecting in its July 8, 1991 comments was Part I.
Section B. of the June 24, 1991, draft permit.'! As stated above, how-
" Part I. Section B. of the draft permit stated, in part:
SPECIAL CONDITIONS
The Permittee shall develop a Plan of Study (POS) to assess
the impacts of the effluent discharge on the tidal riverine and
estuarine portions of the Fenholloway River.
Continued
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FLORIDA PULP AND PAPER ASSOCIATION 57
ever, the provision on which it sought an evidentiary hearing was the
provision requiring Buckeye to develop a plan of study to assess diox-
in levels in fish and crab tissue. Although Part I. Section B. of the June
24, 1991, draft permit also contained a plan of study requirement, it
did not contain the crab analysis requirement on which Buckeye
sought an evidentiary hearing. That condition was contained in Part
VI. Section C. of the June 24, 1991 draft permit.’? Moreover, in the sec-
tion of Buckeye’s July 8, 1991 comments addressing its objections to
Part VI of the draft permit, Buckeye did not object to the crab analy-
sis requirement. See July 8, 1991 Comments at 5-6. We therefore agree
with the Region that “[als Buckeye raised no concern regarding pro-
tocol for crab tissue sampling and analysis in its comments,” the
Region properly denied the evidentiary hearing request. Region’s
Buckeye Response at 16."

Buckeye further states that even if its objection to the crab analy-
sis requirement was not raised in its comments, Buckeye could prop-
erly raise the issue because the Region made changes to the relevant
permit provision after the close of the comment period. Buckeye’s
Petition at 8. According to Buckeye, this constitutes “good cause” for
failing to raise the issue earlier. The change cited by Buckeye, how-
ever, a shortening of the time period allowed for submitting the Plan
of Study, is not relevant to the objection raised by Buckeye in its evi-
dentiary hearing request. Buckeye sought a hearing on whether, given
the alleged lack of an accepted protocol for analyzing ambient crab
tissue, the plan of study requirement in Part VI. Section B. of the per-
mit was inappropriate. As the Region correctly notes, there is no dis-
cernable connection between the change in the time period for sub-
mitting the Plan of Study and the question of whether or not a crab
analysis should be required at all. This latter issue clearly was rea-
sonably ascertainable based on the draft permit during the comment
This section does not appear in the final permit. However, the final permit still requires that
Buckeye develop and implement a POS to “evaluate the impact of the discharged effluent on
the fresh water, estuarine and near shore areas of the Fenholloway River * * *.” See Final Permit,
Part I. Section A.7.

"2 The identical provision is contained in Part VI. Section B.1. of the final permit.

'3 We note that a party seeking an evidentiary hearing must state all disputed legal and fac-
tual issues with specificity. 40 C.F.R. § 124.76(b)(1); In re Sequoyah Fuels Corporation, 4 E.A.D.
215, 218 (FAB 1992). This allows the Region to make an informed decision on the evidentiary
hearing request and for meaningful review of the Region’s determination by the Board. See In
re Broward County, Florida, 4 E.A.D. 705, 720 (FAB 1993). Buckeye’s general objection to the
permit’s POS requirement as quoted above, even if had been directed to the proper study,
would not have been sufficient to put the Region on notice that Buckeye was objecting to the
permit’s requirements related to crab tissue analysis.

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58 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
period. We therefore reject Buckeye’s assertion that this change con-
stitutes good cause for failing to raise the issue earlier.

Finally, Buckeye asserts that good cause exists for failing to raise
the issue during the comment period because “new information
regarding ambient crab tissue dioxin levels has become available
since the close of the comment period.” Buckeye Petition at 8. In par-
ticular, Buckeye states that after the close of the comment period, it
began implementing, and is now close to completing, a Use
Attainability Analysis conducted in cooperation with EPA and the
Florida Department of Environmental Regulation (*FDER”). /d. at 8-9.
Buckeye states that, as part of this study, a crab sampling analysis was
conducted at the mouth of the Fenholloway River and that this study
failed to detect dioxin in the two crab tissue samples tested. Id. at 9.
Even if Buckeye’s statements in this regard were accepted as true,
however, Buckeye has failed to explain, nor can we discern, how it
shows that the issue of whether the alleged absence of an accepted
protocol for analyzing crab tissue for dioxin made the study require-
ment inappropriate was not reasonably ascertainable by the close of
the comment period.

Under these circumstances, we conclude that Buckeye neither
raised the issue in its comments nor has established that this issue was
not reasonably ascertainable by the close of the comment period.
Review is therefore denied.

3. Compliance Deadline

In its evidentiary hearing request, Buckeye sought a hearing on
whether the Agency was required under the Clean Water Act to
include a compliance deadline of October 1, 1995, for the permit’s
dioxin effluent limitations. Buckeye Evidentiary Hearing Request at 9.
In elaborating on this question in its petition, Buckeye states:

Buckeye asserts that EPA has chosen October 1, 1995

as a compliance deadline (a date exactly three years

after the effective date of the permit) because of the

statutory mandate that “individual control strategies”

must be achieved within three years of establishment

pursuant to CWA Section 304(l)(1)(D).""| By raising this

“ Under CWA § 304(l), States must prepare and submit for Agency approval three lists of
water segments meeting criteria provided in that section on or before February 4, 1989. Section
304(l)(1)(D) (emphasis added) provides, in pertinent part, as follows:
Continued

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FLORIDA PULP AND PAPER ASSOCIATION 59
issue, Buckeye wishes to refute the notion that EPA is
bound by the strictures of Section 304(l) in setting this
compliance deadline and that, even if the Agency is so
bound, the date chosen is erroneous because “estab-
lishment” of an individual control strategy does not
occur on the stated effective date of a permit if the
permit does not become final and its effectiveness is
stayed by administrative appeal.
Buckeye Petition at 9..° Thus, it is clear from the petition (as it was
from the evidentiary hearing request) that Buckeye is not challenging
(1) Not later than 2 years after February 4, 1987, each State
shall submit to the Administrator for review, approval, and
implementation under this subsection —
(D) for each such segment, an individual control
strategy which the State determines will produce a
reduction in the discharge of toxic pollutants from
point sources identified by the State under this
paragraph through the establishment of effluent
limitations under section 1342 of this title and water
quality standards under section 1313(c)(2)(B) of
this title, which reduction is sufficient, in combina-
tion with existing controls on point and nonpoint
sources of pollution, to achieve the applicable
water quality standard as soon as possible, but not
later than 3 years after the date of the establishment
of such strategy.

'S Contrary to Buckeye's characterization of EPA's interpretation, the applicable regulations
provide that either a draft or a final NPDES permit may constitute an ICS. 40 C.R.R. § 123.46(c).
In addition, final NPDES permits can constitute an ICS even if they are not yet effective. As
explained in the preamble to the § 304(l)(1) implementation rules:

An NPDES permit usually becomes effective 30 days after a

final decision to issue or modify the NPDES permit unless an

evidentiary hearing is requested under 40 C.F.R. § 124.74.

Evidentiary hearings can delay the effective date of the con-

ditions challenged in the permit. Because these potential

delays could jeopardize the ability of the EPA and the States

to meet the deadlines in section 304(l), and because a final

permit reflects the final decision of the permitting authority

with respect to the permit, EPA will accept a final (but not

necessarily effective) NPDES permit as an ICS.
54 Fed. Reg. 23,888 June 2, 1989). Thus, Buckeye’s interpretation that the establishment of an
ICS can occur only on the date an NPDES permit implementing the requirements of § 304(l)
becomes effective is incorrect.

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60 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

the Region's authority to establish a compliance date.'® Rather, it rais-
es two related issues: 1) whether the Region improperly imposed an
ICS under section 304(l), and 2) if the Region did impose an ICS,
whether the Region misapplied section 304(l) in establishing the com-
pliance date.

The Region denied Buckeye’s request for a hearing regarding the
October 1, 1995 compliance date, stating that Buckeye had failed to
raise the issue during the comment period and thus could not raise it
in an evidentiary hearing. See Buckeye Response at 10-12; 40 C.F.R.
§§ 124.13 and 124.76. In its petition for review, Buckeye, citing to
comments submitted by itself as well as FPPA, argues that the issue
was indeed raised during the comment period. In particular, Buckeye
cites to its August 9, 1991 comments asserting that the Region should
delay imposing any new dioxin limitations until an ongoing State
water-quality standards setting process is complete. Buckeye noted in
these comments that section 304(l) does not apply in the present case
and, thus, the permit need not “be issued in the immediate future.”
Buckeye’s August 9, 1991 Comments at 9. Buckeye has also cited to
comments submitted by FPPA in response to the draft permit in which
FPPA asserted that by imposing a permit condition related to dioxin,
EPA has in essence proposed an ICS even though the facility is not
subject to the provisions of CWA § 304(l). See FPPA August 9, 1991
Comments at 4-6, 7-9 (Appendix 2 to FPPA Petition).

While we agree with the Region that none of the comments cited
by Buckeye raise any specific objection to the permit’s three-year com-
pliance schedule per se, FPPA raised the issue of whether the Region
improperly imposed an ICS.” Buckeye has asserted (both in its evi-
dentiary hearing request and in its petition for review) that the permit’s

'© As the Board has previously stated, in issuing NPDES permits the Agency has the author-
ity to include schedules of compliance for meeting water quality-based effluent limitations where
the State’s water quality standard itself, or the implementing regulations, “can be fairly construed
as authorizing a schedule of compliance.” In re J G L Specialty Products Corp., 5 E.A.D. 333, 344
(FAB 1994) (quoting In re Star-Kist Caribe, Inc. 3 E.A.D. 172, 175 (Order on Petition for
Reconsideration, Adm’r, April 16, 1990), modif: den. (Order Denying Modification Request, EAB,
May 26, 1992); In re City of Haverbill, Wastewater Division, 5 E.A.D. 211, 215 (EAB 1994). As the
Region has stated in its response to the petition filed by FPPA (p.10), the imposition of a sched-
ule of compliance for dioxin and toxicity limitations is authorized by the State of Florida. See
Florida Administrative Code, Rule 17-4.160(10) (authorizing a “reasonable time” for compliance).

© Although, as stated above, the regulations make clear that, in order to preserve an issue
for review, 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. See Ji re
Broward County, Florida, 4 E.A.D. 705, 714 (EAB 1993).

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FLORIDA PULP AND PAPER ASSOCIATION 61
three-year compliance schedule was the result of the Region’s erro-
neous determination in this regard. Under the circumstances, we con-
clude that this issue was adequately raised during the comment period.

As discussed later in this decision, we conclude, as a legal matter,
that the final permit cannot be an ICS because Buckeye’s facility does
not meet the statutory prerequisites for the imposition of an ICS pur-
suant to CWA § 304(1). Thus, no evidentiary hearing is necessary on this
issue. In addition, because the permit is not, nor could it be, an ICS,
the issue of how to apply section 304(l) in imposing a compliance
schedule is not a material issue relevant to issuance of the final permit
in that it would not affect the outcome of the present dispute. 40 C.F.R.
§ 124.75(a)(1) (hearing request must set forth “material issues of fact
relevant to the issuance of the permit.”); In re J G L Specialty Products
Corporation, 5 E.A.D. 31, 42 EAB 1994) (an issue is material where it
might affect the outcome of the proceeding); In re Mayaguez Regional
Sewage Treatment Plant, 4 E.A.D. 772, 781 (EAB 1993). The Region’s
denial of an evidentiary hearing on this issue is therefore affirmed.

B. FPPA Petition

FPPA objects to the Region's denial of its evidentiary hearing

request with regard to the following two issues:*
(1) whether the permit constitutes an individual con-
trol strategy (“ICS”); whether EPA can legally impose
an ICS on Buckeye through this NPDES permit; and
whether EPA can base such an ICS on fish sample data
(paragraph 9.d and Sections 10.D and 10.E. of FPPA’s
evidentiary hearing request);
(2) whether the species of organisms proposed for use
in chronic toxicity tests are representative of species
inhabiting waters affected (paragraph 9.h. of FPPA’s
evidentiary hearing request).

FPPA’s Notice of Appeal and Petition for Review (‘FPPA Petition”) at 2-

3. These will be discussed in turn below.
4. ICS Issue

In its evidentiary hearing request, FPPA contested the permit lim-
itations related to dioxin and chronic toxicity. In particular, FPPA stat-

' The FPPA raised two additional issues in its petition on which the Region subsequently
agreed to grant an evidentiary hearing. We therefore do not address these issues in this decision.

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62 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

ed, inter alia, that by including these permit limitations the Region
had, in effect, imposed an ICS even though the statutory prerequisites
for imposing an ICS have not been met. FPPA argued that these con-
ditions should therefore be removed from the permit. See FPPA
Evidentiary Hearing Request at 7, 10-11. In its denial of FPPA’s evi-
dentiary hearing request, the Region stated that the permit did not con-
stitute an ICS, and that, in any case, the permit limitations to which
FPPA objected (dioxin and chronic toxicity limitations) were consistent
with Section 301(b)(1)(C) of the Clean Water Act. See Regional
Administrator’s Decision on FPPA’s Request for an Evidentiary Hearing
(“Response to FPPA’s Hearing Request”), Enclosure at 2-3 (Appendix 6
to FPPA Petition). The Region therefore concluded that FPPA’s con-
cerns regarding the Region’s legal authority to impose an ICS were
“immaterial to consideration of whether a present permit contains lim-
itations necessary to meet water quality standards.” 7d. at 3.'°

In its petition for review, FPPA renews its assertion that it is enti-
tled to an evidentiary hearing on whether the Region improperly
imposed an ICS on Buckeye’s facility. FPPA points to the permit’s
three-year compliance deadline for meeting the dioxin and chronic
whole effluent toxicity requirements as evidence that the permit con-
stitutes an ICS.”° FPPA also notes that the fact sheet accompanying the
draft permit stated that the basis for the permit’s three-year schedule
of compliance for meeting the water quality-based dioxin limits was
section 304(l) of the Act. See Appendix 1 to FPPA Petition. For the fol-
lowing reasons, we agree with the Region that FPPA has failed to raise
a material issue requiring an evidentiary hearing.

Based on our review of the record on appeal, it is clear that the
present permit is not, nor could it be, an ICS because the facility
does not meet the statutory prerequisites for imposing an ICS. That
is, the Fenholloway River, into which Buckeye discharges its efflu-
ent, is not a listed water segment under CWA § 304(l)(1)(A) or (B),
nor has the Foley Mill been identified as a point source pursuant to
CWA § 304(l)(1)(C). Thus, the facility legally cannot be subject to the
requirements of section 304(l). See CWA § 304(l)(1)(D) (requiring an

' We note that the Region granted FPPA’s request for a hearing on the appropriateness of
the permit’s dioxin limitations as well as the data used to support the imposition of these limi-
tations. See Response to FPPA’s Hearing Request, Enclosure at 1-2. The Region also granted a
hearing on the legal issue of whether the Region has the authority to establish numeric stan-
dards for dioxin. /d. at 7.

*) As stated above, Section 304(l) of the Clean Water Act states that when imposing an ICS,
applicable water quality standards must be met not later than three years after imposition of
the ICS.

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FLORIDA PULP AND PAPER ASSOCIATION 63
individual control strategy for identified point sources in listed water
segments). Moreover, as the Region made clear in denying the evi-
dentiary hearing request, the permit “did not impose an [ICS] in this
case.”*' Response to FPPA’s Hearing Request, Enclosure at 8. Thus,
as a legal matter, we find no error in the Region’s decision to deny
an evidentiary hearing on the issue of whether this permit constitut-
ed an ICS.”

2. Indigenous Species

In its request for an evidentiary hearing, FPPA stated, in pertinent

part, as follows:

The species of organisms proposed for use in the

chronic toxicity test may not be representative of

species that inhabit the waters affected by the dis-

charge from [Buckeye’s} plant, or even of comparable

waters such as the Econfina River which are not affect-

ed by discharge from {Buckeye’s] mill. FDER rules

require use of species “significant to the indigenous

aquatic community” in measuring chronic toxicity

(Rule 17-302.200(3)(a), Fla. Admin. Code).
FPPA Evidentiary Hearing Request at 8 (Appendix 4 to FPPA
Petition).** FPPA raised the identical issue in its August 9, 1991 com-
ments on the draft permit. See FPPA August 9, 1991 Comments at 3
(Issue 9.h.). The Region denied FPPA’s evidentiary hearing request on
the ground that the issue was not raised with sufficient specificity. See
Response to FPPA’s Hearing Request, Enclosure at 6-7. In particular,
the Region stated that “FPPA’s general assertion that [the] organisms

• As Buckeye has pointed out, the Region does indeed state in the fact sheet accompany-
  ing the draft permit that the basis for the permits three-year schedule of compliance was section
  304(l) of the Clean Water Act. The Region provides no explanation for this statement nor can we
  discern any reason why the Region would have made such a statement. In any case, as we con-
  clude that the permit cannot be an ICS, as even the Region agrees, the Region’s apparently erro-
  neous statement in this regard does not affect our determination. (Obviously, for that reason, the
  Region cannot rely on section 304(l) in supporting the permit’s compliance schedule.)

• In addition, as the Board has previously stated, section 304(l) does not change any sub-
  stantive water quality-based requirements of the Clean Water Act. Rather, it may only hasten the
  implementation of these requirements with respect to toxic pollutants. i re J & L Specialty
  Products Corp., 5 F.A.D. 31, 37-38 (EAB 1994). Thus, FPPA’s assertions relating to whether the
  permit constitutes an ICS are not relevant to the Region's legal authority to impose substantive
  dioxin or chronic toxicity limitations.

• Part V. Section L.a. of the permit requires that applicable tests be conducted on the daph-
  nid (Ceriodaphnia dubia) and the Fathead Minnow (Pimephales promelas).

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64 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

may not be representative of species in waters affected by the dis-
charge is not sufficient to warrant an evidentiary hearing on this
issue.” Id. at 7 (emphasis in original). For the following reasons, this
issue is remanded to the Region so that an evidentiary hearing can be
scheduled.

Because the Region believes that this issue was not properly
raised in the evidentiary hearing request, the Region’s response does
not address the merits of FPPA’s argument. The merits of FPPA’s argu-
ment were addressed, however, in the Region’s response to FPPA’s
comments on the draft permit. There, the Region stated:

The use of standard laboratory species in toxicity tests

is consistent with EPA’s Technical Support Document,

various EPA toxicity test protocols, and EPA’s May 5,

1986 Regional policy. The final recommendation of the

August, 1985 FDER Bioassay Task Force final report

(pg.7) regarding this issue was that “standard mono-

cultures of known health and sensitivity must be used

in testing.”
Response to Comments at 26. The Region also stated that the use of
indigenous species is not practical because of: (1) the absence of sen-
sitive organisms in the receiving water due to previous exposure to
the effluent or other pollutants; (2) the difficulty in collecting and han-
dling organisms of the desired age and condition (free from disease)
from the receiving water; (3) the lack of extensive quality control and
range-of-sensitivity information for such species; and (4) the lack of
information on the diet of such indigenous organisms. /d. at 26-27.
Thus, although FPPA’s concerns regarding the appropriateness of the
species selected for toxicity testing could have been expressed with
more specificity, the issue was clearly raised and sufficiently well-
defined to elicit a substantive response from the Region. Moreover, as
the Region’s response to comments indicates, the issue was also
raised by another commenter. In particular, the Region’s response to
comments states that “[o]ne commenter questioned the ecological rel-
evance of the bio-assay test. He further stated that the fathead min-
now does not survive naturally in the Fenholloway River.” Response
to Comments at 49. The Region gave essentially the same response to
this comment as it gave to FPPA’s comment.

We find that the issue of whether the species designated in the
permit for use in toxicity testing were representative of species in the
receiving waters was raised by FPPA and another commenter during
the comment period. We reject the Region’s argument that the issue
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was not raised with sufficient specificity. The Region was clearly on
notice that concerns existed in this regard, and indeed felt compelled
to respond to these concerns in its response to comments. As this
Board has previously stated, the issue of whether a permit’s designat-
ed test species are suitable surrogates for indigenous species is a gen-
uine issue of material fact which, if adequately raised, requires an evi-
dentiary hearing. See In re Miami-Dade Water and Sewer Authority
Department, 4 E.A.D. 133, 147 (EAB 1992). Accordingly, we are
remanding this issue so that the Region can conduct an evidentiary
hearing.

III. CONCLUSION
We are remanding the issue of whether the species designated in
the permit for toxicity testing are representative of indigenous species
to the Region for an evidentiary hearing.‘ With respect to the other
issues raised in the petitions filed by Buckeye and FPPA, review is
hereby denied.
So ordered.

• Although 40 C.F.R. § 124.91 contemplates that further briefing will ordinarily be required
  upon a grant of a petition for review, “a direct remand without additional submissions is appro-
  priate where as here, it does not appear as though further briefs on appeal would shed light on
  the issues [to be] addressed on remand.” In re J & L Specialty Products Corp., 5 E.A.D. 31, 83 n.65
  (EAB 1994) (quoting In re Amoco Oil Company Mandan, North Dakota Refinery, 4 E.A.D. 954,
  982 n.38 (EAB 1993).

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