Portland Water District

Plain-English summary

Portland Water District sought review of the denial of an evidentiary hearing request concerning total residual chlorine limits in an NPDES permit for its Cape Elizabeth Wastewater Treatment Facility in Maine. Maine's Department of Environmental Protection certified that the permit's monthly average and maximum daily chlorine limits should be 0.23 milligrams per liter. The Environmental Appeals Board held that the disputed limits and immediate compliance date were attributable to state certification under the applicable regulations. Because the Board could not review those conditions in this forum, it denied the petition for review.

Decision snapshot

• Cited authorities: 33 U.S.C. §§ 1311, 1341, and 1342; 40 C.F.R. §§ 124.53, 124.55, and 124.91.
• Outcome: Review denied. The Board upheld the denial of Portland's evidentiary hearing request.
• Key point: NPDES permit conditions attributable to state certification must be challenged through applicable state procedures rather than EAB review.

Full text (EPA EAB public release)

         BEFORE THE ENVIRONMENTAL APPEALS BOARD
      UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                    WASHINGTON, D.C.



                          )

In re: )
)
Portland Water District ) NPDES Appeal No. 95-10
)
Docket No. ME0102121 )
)
)

                   ORDER DENYING REVIEW

 In a one-page petition dated December 5, 1995, the Portland

Water District ("Portland") seeks review of the denial of an

evidentiary hearing request on an issue relating to a National

Pollutant Discharge Elimination System ("NPDES") permit1 issued

by U.S. EPA Region I for Portland’s Cape Elizabeth Wastewater

Treatment Facility in Cape Elizabeth, Maine. Notice of Appeal on

Petition for Review ("Petition"). The Petition states, in

pertinent part, as follows:

 The Portland Water District has contested the
 provisions of the permit relating to total residual
 chlorine limits. In its decision, the Regional
 Director denied the request for evidentiary hearing on
 the ground that the contested permit condition was the
 result of state certification pursuant to [40 C.F.R.]
 Section 124.53. However, the state certification does

 1
  Under the Clean Water Act ("CWA"), discharges into waters

of the United States by point sources such as Portland’s
wastewater treatment facility must be authorized by a permit in
order to be lawful. 33 U.S.C. § 1311. The NPDES is the
principal permitting program under the CWA. 33 U.S.C. § 1342.
 2

 not comply with the provisions of [40] C.F.R. [§]
 124.53(e). Because the contested permit condition has
 not been validly certified, the Regional Director
 committed an error of law in denying the request for
 evidentiary hearing.

Petition at 1.

 As requested by the Board, the Region filed a response dated

January 24, 1996. Respondent’s Memorandum in Opposition to

Petition for Review ("Response"). Because we conclude that the

disputed permit condition is attributable to State certification,

review is denied.

                       I.   BACKGROUND

 In July 1995, the Region prepared a draft NPDES permit for

Portland’s facility. In pertinent part, the draft permit stated

that the total residual chlorine ("TRC") limits were to be set at

0.22 milligrams per liter ("mg/l").2 Thereafter, the Region

submitted its draft permit to the Maine Department of

Environmental Protection ("ME DEP") and, in response, received a

letter of certification dated August 15, 1995 ("State

Certification"). The State Certification stated that the permit

would comply with sections 208(e), 301, 302, 303, 306, and 307 of

the CWA, that Portland’s discharges would not lower the receiving

water quality below the minimum levels, and that the permit

effluent limits would satisfy the requirements of Maine law

 2
  The relevant part of the draft permit required Portland to

meet both average monthly and maximum daily discharge limits of
0.22 mg/l. Draft Permit at 2.
 3

subject to two modifications.3 In relevant part, the State

Certification stated that "[t]otal residual chlorine average

monthly and maximum daily limits should be 0.23 mg/L, as

determined by the Department’s Division of Environmental

Assessment personnel." State Certification at 1. In addition,

the State Certification stated that "[a]ny change to the terms or

conditions of the draft permit is not certified by this document,

and will require a case-by-case determination by the State that

the changed conditions will continue to satisfy the appropriate

requirement of Maine law." Id. The Region issued the final

permit on September 19, 1995, including monthly average and

maximum daily TRC limits of 0.23 mg/l.

 Thereafter, in its request for evidentiary hearing, Portland

stated that it wanted to know specifically: (1) whether the

"Cormix" model was utilized appropriately in determining the TRC

limits; (2) whether EPA assumed accurate ambient and discharge

parameters in running the model; and (3) whether the permit

should have included a compliance schedule for the TRC limits.

Request for Evidentiary Hearing at 1-2 (Oct. 20, 1995). The

Regional Administrator denied Portland’s request stating that

pursuant to 40 C.F.R. § 124.55(e), the Region did not have the

 3
  Additionally, the letter stated that the monthly average

flow limits needed to be changed "from 0.52 MGD to 0.499 MGD" in
order to coincide with Portland’s pending State license.
Furthermore, the measurement frequency for biochemical oxygen
demand, total suspended solids, and fecal coliform bacteria for
the decreased flow limit was to be set at once per week.
 4

authority to review decisions "attributable to State

certification" and that review of the TRC limits must be made in

state court.4 Denial of Request for Evidentiary Hearing at 1.

Thus, there was no material factual issue in dispute warranting

an evidentiary hearing.5

 In its petition for review, Portland objects to the denial

of its evidentiary hearing request relating to the permit’s TRC

limits. As previously stated, Portland contends that the State’s

certification was invalid because it did "not comply with the

provisions of [40] C.F.R. § 124.53(e)." Thus, according to

Portland, the Region’s reliance on the certification in denying

the evidentiary hearing request was erroneous. Petition at 1.

                       II.   DISCUSSION

 Under the rules governing an NPDES proceeding, there is no

appeal as of right from the Regional Administrator’s denial of an

evidentiary hearing request. In re Broward County, Florida,

NPDES Appeal No. 95-7, slip op., at 9-10, 6 E.A.D. ___ (EAB, Aug.

27, 1996). Ordinarily, a petition for review is denied unless

 4
  With respect to the compliance schedule issue, the Regional

Administrator acknowledged that Portland may have difficulty
complying with the permit’s TRC limits and offered to develop an
administrative order that "would establish an expeditious
schedule for achieving compliance." Denial of Request for
Evidentiary Hearing at 2.
5
See In re Mayaguez Regional Sewage Treatment Plant, 4
E.A.D. 772, 780 (EAB 1993) (stating that a party requesting an
evidentiary hearing must raise a genuine issue of material fact),
aff’d sub nom. Puerto Rico Aqueduct and Sewer Auth. v. U.S. EPA,
35 F.3d 600 (1st Cir. 1994).
 5

the Regional Administrator’s decision to deny a hearing was

clearly erroneous or involved an exercise of discretion or policy

that is important, thereby warranting review by the Environmental

Appeals Board. Id. The Agency’s long-standing policy is that

NPDES permits should be finally adjudicated at the Regional

level, and that the power to review NPDES permit decisions should

only be exercised "sparingly." Id. The petitioner has the

burden of demonstrating that review should be granted. Id.; 40

C.F.R. § 124.91(a).

 The sole issue here is whether the Region’s denial of

Portland’s evidentiary hearing request was properly based on the

Region’s finding that the contested permit limits were

attributable to State certification.6

 Section 401 of the CWA7 authorizes States to certify that

any effluent limits and monitoring requirements in an NPDES

permit will comply with the applicable provisions of the CWA and

with any appropriate State requirements set forth in such

certification. Any such limits or requirements certified by the

 6
  The Region has argued that Portland waived its right to

challenge the adequacy of the State’s Certification because it
failed to raise this issue in its evidentiary hearing request.
Response at 5. Because we conclude that the disputed conditions
are, in any event, attributable to State certification, we do not
reach this issue. See In re General Electric Co., Hooksett, New
Hampshire, 4 E.A.D. 468, 473 n.7 (EAB 1993).
7
33 U.S.C. § 1341.
 6

State then become "attributable to State certification." 40

C.F.R. § 124.55(e). As the Board has previously stated:

Challenges to permit limitations and conditions
attributable to State certification will not be
considered by the Agency. Rather, such challenges must
be made through applicable State procedures. See 40
C.F.R. § 124.55(e). It is well established that the
Agency may not "look behind" a State certification
issued pursuant to section 401 of the Clean Water Act,
33 U.S.C.A. § 1341, for the purpose of relaxing a
requirement of that certification.

General Electric, 4 E.A.D. at 470 (citations omitted).

Upon consideration, we agree with the Regional Administrator

that the permit’s TRC limits and immediate compliance date were

attributable to State certification and the evidentiary hearing

request was therefore properly denied. In its certification

letter, ME DEP made clear that certification was conditioned on

the TRC limits being set at 0.23 mg/l. The draft permit required

compliance immediately, i.e., it did not include a compliance

schedule. The certification emphasized that "[a]ny change in the

terms or conditions [of the permit] * * * is not certified by

this document." State Certification at 1. Although ME DEP did

not expressly state that the TRC limits were necessary or that

they could not be made less stringent, this Board is confident,

based on the above-quoted language from the State Certification,

that those were ME DEP’s intentions. See General Electric, 4

E.A.D. at 471-72. Thus, we reject Portland’s contention that the
 7

requirements of 40 C.F.R. § 124.53(e) have not been satisfied.8

The certification satisfies both 40 C.F.R. § 124.53(e)(1) and

(3). 40 C.F.R. § 124.53(e)(2) is not applicable because the

State Certification had the effect of making the permit less

stringent not more stringent. See General Electric, 4 E.A.D. at

471 n.4.

                         III.   CONCLUSION

   Because the permit’s TRC limits are "attributable to State

certification" within the meaning of 40 C.F.R. § 124.55(e), it

may not be reviewed in this forum. Review is therefore denied.

   So ordered.



                                ENVIRONMENTAL APPEALS BOARD

Dated: 2/11/97 By: /s/
Kathie A. Stein
Environmental Appeals Judge

   8
  We note that Portland’s petition does not identify any

specific flaws in the State Certification and therefore lacks the
degree of specificity generally required to support a petition
for review. See In re Broward County, Florida, 4 E.A.D. 705, 709
(EAB 1993). Because we conclude, however, that the State
Certification satisfies the requirements of 40 C.F.R. §
124.53(e), we need not rule on this issue.