In Re Chukchansi Gold Resort & Casino Waste Water Treatment Plant
Caroline Rodely, Alan Rodely on behalf of himself and other downstream residents (“the Downstreamers”), Madera Irrigation District, and Jo Anne Kipps (collectively “Petitioners”) each petitioned the Environmental Appeals Board (“Board”) to review the final National Pollutant Discharge Elimination System (“NPDES”) permit that Region 9 (the “Region”) of the United States Environmental Protection Agency issued under the Clean Water Act, 33 U.S.C. § 1342, to the Chukchansi Gold Resort and Casino Waste Water Treatment Plant (“Facility”) on December 4, 2007 (“Permit”). The Permit authorizes the existing Facility to discharge treated effluent from its wastewater treatment plant into an unnamed creek on tribal land.
In their collective appeals, Petitioners argue that the Region’s permit decision is deficient in several respects. First, Ms. Rodely and the Downstreamers assert that the Region erred in allowing discharge into a dry creek bed. Second, Ms. Rodely asserts that the Region failed to conduct an Environmental Impact Report under California law and failed to adequately assess effects on wildlife. Third, the Downstreamers allege that the Region failed to properly identify and explain changes made to the final Permit as required by 40 C.F.R. § 124.17(a)(1). Fourth, Madera Irrigation District challenges the Region’s determination not to include in the Permit an effluent limitation for phosphorus. Finally, Jo Anne Kipps raises three issues: (1) the failure to include Appendix A to the Region’s response to comments document with the notice of the permit decision that she received; (2) the sufficiency of monitoring for trihalomethanes; and (3) the sufficiency of investigation and monitoring for total coliform organisms (“TCO”) and turbidity. Held: Ms. Rodely and the Downstreamers have not identified any factual or legal error in the Region’s determination to allow the permitted discharges; nor have they explained why the Region’s responses to previous and related objections were clearly erroneous, an abuse of discretion, or otherwise warrant Board review as required by 40 C.F.R. § 124.19(a).
The Region was not required to do an Environmental Impact Report, a requirement of California rather than federal law, and the Region complied with the federal Endangered Species Act. Thus, the Board concludes that the Region did not fail to assess potential effects on wildlife.
The Downstreamers’ bald assertion that the Region failed to properly identify and explain changes made to the final Permit as required by 40 C.F.R. § 124.17(a)(1), without any specific example, is not enough to satisfy their burden under 40 C.F.R. § 124.19(a) to demonstrate that review is warranted. Madera Irrigation District did not explain with sufficient specificity why the Region’s finding that the permitted discharge would not result in a degradation of water quality, and its determination that no specific phosphorus effluent limitation was necessary, were clearly erroneous, an abuse of discretion, or otherwise warrant review. See 40 C.F.R. § 124.19(a).
Finally, the Board holds that, under 40 C.F.R. §§ 124.15, -.17(a), Jo Anne Kipps was entitled to receive, and did receive, notice of the Region’s permit decision. The Region was not required to include the Region’s response to comments document, including Appendix A, with the notice of the permit decision. Moreover, Ms. Kipps did not dispute that Appendix A was otherwise made “available” in accordance with the regulations. Further, Ms. Kipps did not articulate any basis for review of the Region’s determinations with respect to trihalomethane monitoring. However, with respect to the effluent investigation and monitoring of TCO and turbity, the Board finds that the Region’s explanations for the monitoring frequencies imposed in the Permit are inconsistent and substantively lacking. As such, the record does not provide a sufficient basis for review of the Region’s monitoring determinations. Accordingly, we remand the NPDES Permit issued to the Chukchansi Gold Resort and Casino to the Region for further consideration of the TCO and turbidity investigation and monitoring requirements imposed. Review of all other issues is denied.