City of San Marcos (Board decision, July 6, 1998)

Plain-English summary

The San Marcos River Foundation sought review of an EPA Region VI decision involving the reissuance of the City of San Marcos's NPDES permit for its publicly owned treatment works. The Foundation argued that the permit should reduce wastewater discharge volume when a planned drinking-water treatment facility became operational. The Board held that the Foundation's concerns about the proposed facility and discharge reduction were reasonably ascertainable before the comment period closed, but were not raised in comments on the draft permit. Because the issues were not preserved for review and no good cause was shown, the Board dismissed the petition.

Decision snapshot

• Cited authorities: 33 U.S.C. § 1342(a)(1); 40 C.F.R. §§ 122.2, 124.13, and 124.76.
• Outcome: Petition for review dismissed because the challenged issues were not preserved during the comment period.
• Key point: NPDES permit issues generally must be raised in comments on the draft permit before the EAB can review them.

Full text (EPA EAB public release)

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

)
In re: )
)
City of San Marcos
) NPDES Appeal No. 97-6
San Marcos, Texas
)
)
Docket No. TX0047945 )
)

ORDER DISMISSING APPEAL

By petition dated September 19, 1997, the San Marcos

River Foundation (“SMRF”) seeks review of the denial of an

evidentiary hearing request relating to the reissuance of a

National Pollutant Discharge Elimination System (“NPDES”)

permit by U.S. EPA Region VI to the City of San Marcos, Texas

regulating discharges from the City’s publicly owned treatment

works (“POTW”).1 See Notice of Appeal and Petition for

Review; Memorandum in Support of the San Marcos River

Foundation’s Notice of Appeal and Petition for Review

1
Under the NPDES program, which is authorized by Section 402(a)(1) of the Clean Water Act, 33 U.S.C. § 1342(a)(1), a permit is required for all discharges of pollutants from a point source, such as the City’s POTW, into waters of the United States. A POTW is defined by Agency regulations to include "any * * * system used in the treatment (including recycling and reclamation) of municipal sewage or industrial wastes of a liquid nature which is owned by a ’State’ or ’municipality.’" 40 C.F.R. § 122.2.
 2

("Memorandum in Support of Appeal"). As requested by the

Board, the Region filed a response dated November 24, 1997.

Response to Petition for Review ("Region’s Response").

SMRF frames the issue before the Board as follows:

Does the volume of wastewater discharge allowed in an NPDES permit for a publicly owned treatment works issued to a municipality that owns and operates a sewage treatment plant that currently discharges all of its effluent directly to waters of the United States have to be reduced in volume in proportion to the volume of effluent the City will route into the intake of the City’s proposed new drinking water treatment facility?

Memorandum in Support of Appeal at 3. According to SMRF, the

City of San Marcos is planning to build and bring into

operation a new drinking water treatment facility. SMRF

states that this new facility will be operational at some date

prior to expiration of the current permit on January 31, 2000,

and that, once operational, the facility will be able to

receive and treat all the discharge exiting the POTW, thereby

converting it to potable drinking water. Id. at 4. SMRF

expresses concern that once the new facility is constructed,

the City does not plan to pipe the wastewater directly from

the POTW to the new facility. Rather, according to SMRF, "the

City has applied for a permit [from the State of Texas] to use

the ’bed and banks’ of the [San Marcos] River to transport its

wastewater downstream approximately 2 miles to a diversion

point and thence via pipeline 1.5 to 2 miles to the [new 3

facility]." Id. SMRF opposes the City’s plans in this

regard.2 Ideally, SMRF would like the existing facility to

cease all discharges to the San Marcos River and send its

effluent via pipeline directly to the proposed new facility.

On March 5, 1997, SMRF filed an evidentiary hearing

request raising similar concerns to those discussed above. On

August 19, 1997, the Region denied the evidentiary hearing

request on the ground that the issues raised by SMRF were not

raised during the comment period. See Decision on Evidentiary

Hearing Request.3

Upon review, we agree with the Region that the issue of

whether the permit should require a reduction in the volume of

wastewater discharged in proportion to the amount of water

treated by a proposed new facility, as well as SMRF’s other

concerns related to the construction of a proposed new

facility, were reasonably ascertainable but were not raised

during the comment period. Thus, the issues raised in the

SMRF’s petition were not preserved for review.

2
SMRF further states that the City’s NPDES permit application failed to consider the potential reduction in discharge volume that could result from the construction of the new facility. See Letter from John Hohn, Counsel for SMRF, to U.S. EPA Region VI (March 5, 1997) (requesting an evidentiary hearing) (hereinafter referred to as "Evidentiary Hearing Request").
3
The Region also stated that it was without authority to regulate withdrawals from the San Marcos River to the proposed new facility. 4

Under 40 C.F.R. Part 124, in order to contest a final

permit determination in an evidentiary hearing or to preserve

an issue for review by the Board, "all reasonably

ascertainable issues" must be raised by the close of the

comment period. See 40 C.F.R. § 124.13. In addition, 40

C.F.R. § 124.76 provides that "[n]o issues shall be raised by

any party that were not submitted to the administrative record

• • • as part of the preparation of and comment on a draft

permit unless good cause is shown for the failure to submit

them." As the Board has previously stated, adherence to this

requirement is necessary to alert the Region to potential

problems with the draft permit and to ensure that it has an

opportunity to address these problems before the permit

becomes final, thereby promoting the longstanding policy that

most permit issues should be resolved at the Regional level.

See In re Florida Pulp and Paper Ass’n & Buckeye Florida, 6

E.A.D. 49, 53 (EAB 1995); In re Broward County, Florida, 4

E.A.D. 705, 714 (EAB 1992).

In the present case, SMRF does not dispute the Region’s

conclusion that the issues upon which SMRF seeks review were

not raised during the comment period and our review of the

record on appeal confirms the Region’s conclusion in this

regard. Further, SMRF does not assert good cause for failing

to raise these issues, nor does the record before us suggest 5

that any good cause existed. 4 Thus, because the issues

were reasonably ascertainable but were not raised in SMRF’s

comments on the draft permit, the issues were not preserved

for review. Accordingly, the petition for review is hereby

dismissed.

So ordered.

ENVIRONMENTAL APPEALS BOARD

Dated: 7/6/98 By: /s/
Ronald L. McCallum
Environmental Appeals Judge

4
Based on SMRF’s statements in its evidentiary hearing request, it appears as if the City publicly announced plans to build the new drinking water treatment facility before issuance of the draft permit in this case. See Evidentiary Hearing Request at 3 (stating that "during the period the City was applying for the reissuance of its NPDES permit the City of San Marcos revealed to the public its intention to construct a new domestic water treatment system."). CERTIFICATE OF SERVICE

I hereby certify that copies of the forgoing Order Dismissing Appeal in the matter of City of San Marcos, San Marcos, Texas, NPDES Appeal No. 97-6, were sent to the following persons in the manner indicated:

First Class Mail
Postage Prepaid:
John Hohn
Hohn & Janssen
P.O. Box 1245
110 E. San Antonio St.
San Marcos, TX 78666

Robyn Moore
Assistant Regional Counsel (6RC-
C)
U.S. EPA, Region VI
1445 Ross Ave
Dallas, TX 75202-2733

Dated: 7/7//98
__/s/__
Annette Duncan
Secretary