ArcelorMittal Cleveland Inc.
In April 2010, ArcelorMittal Cleveland Inc. requested that the Ohio Environmental Protection Agency (Ohio EPA), which administers the Clean Water Act (CWA) National Pollutant Discharge Elimination System permit program in Ohio, approve an increase in the current permit limits for ammonia-nitrogen discharges from two iron blast furnaces at Arcelor’s Cleveland steel mill. Ohio EPA agreed that Arcelor’s proposed new limits would meet the water quality protection and other requirements of applicable law, and proposed to approve the requested increase.
The proposed increase in Arcelor’s effluent limits also requires the approval of Region 5 of the U.S. Environmental Protection Agency (EPA), which authorized the current permit limits in 2001 through a CWA §301(g) “variance” that allows the discharge to exceed best available technology limits. On June 23, 2011, EPA determined that the request to modify the effluent limits in the variance was time barred by CWA §301(j)(1)(B). That provision requires §301(g) variance applications to be submitted within 270 days of December 27, 1977, or the issuance of applicable effluent guidelines (May 1982 in this case), whichever is later. There is no dispute among the parties that predecessor owners of the Cleveland mill timely applied for the current variance.
On August 26, 2011, Arcelor appealed the Region’s denial to the Environmental Appeals Board. The question presented in the appeal is whether the plain language of the CWA precludes EPA from modifying the effluent limits in a previously approved §301(g) variance, once the original 270-day statutory time limit for variance applications imposed by §301(j)(1)(B) has passed.
Held: The Board holds that the Region clearly erred in concluding that the plain language of §301(j)(1)(B) precludes EPA from modifying the effluent limitations in a previously granted §301(g) variance. The statute is silent on the question presented. The Board notes that EPA has discretion to interpret the statute in a reasonable manner, but finds that the Agency has not issued an authoritative interpretation or policy on the question presented. The Board therefore remands the case to the Region for reconsideration and to make a prompt decision on Arcelor’s application consistent with this opinion.