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In re City of Port St. Joe

07/30/1997
Case Number:NPDES Appeal Nos. 94-8, -9
ELR Citation:28 ELR 40693

Petitioners, the City of Port St. Joe and the Florida Coast Paper Company, petitioned for review of a National Pollutant Discharge Elimination System (“NPDES”) permit that was issued by EPA Region IV (the “Region”) to the City for the Port St. Joe Industrial Wastewater Treatment Plant (the “IWTP” or the “plant”). Under the NPDES permit program, dischargers are subject to different statutory and regulatory requirements depending on whether they are categorized as a “publicly owned treatment works” (“POTW”) or “other than publicly owned treatment works” (“non-POTW”). A POTW is defined by Agency regulations to include “any * * * system used in the treatment * * * of municipal sewage or industrial wastes of a liquid nature which is owned by a ‘State’ or ‘municipality.’” 40 C.F.R. § 122.2. Petitioners acknowledge that the IWTP is owned and operated by the City of Port St. Joe, which is a municipality. However, they argue that the IWTP’s influent is atypical of POTWs in that most of the influent it receives consists of industrial process wastes from a local pulp and paper mill rather than municipal sewage. They argue that the Region should, as an exercise of discretion, regulate the IWTP as if it were a non-POTW because of the predominantly industrial nature of its influent. Petitioners raise multiple legal and factual objections to specific permit provisions, most of which stem in whole or in part from the Region’s classification of the plant as a POTW.

Held: Petitioners’ requests for review of all of the legal issues, and all but three of the alleged factual issues, raised by their petitions, are denied. Petitioners’ request for review of three Constitutional issues is also denied.

Petitioners have not demonstrated that the Region erred when it classified the IWTP as a POTW. The IWTP falls within the regulatory definition of a POTW and Petitioners have cited no authority to support their contention that the Region has the discretion to ignore the regulatory definition and classify the IWTP as a non-POTW rather than as a POTW.

Petitioners have not demonstrated that the Region erred when it imposed an 85% removal requirement for the pollutant parameters Biochemical Oxygen Demand (“BOD5”) and Total Suspended Solids (“TSS”). The regulations mandate an 85% removal requirement for POTWs unless the POTW demonstrates eligibility for one of the specific regulatory exceptions to the requirement. Since Petitioners have not demonstrated eligibility for such an exception, the Region is required to impose the requirement.

The Region is required to incorporate sewage sludge management requirements in the IWTP’s permit, pursuant to Section 405(f) of the Clean Water Act, 33 U.S.C. § 1345(f), and implementing regulations at 40 C.F.R. Part 503 (Standards for the Use or Disposal of Sewage Sludge). Therefore it properly included sewage sludge management requirements in the permit.

Petitioners’ request for an evidentiary hearing as to all of the alleged issues of fact raised in their petitions is denied, except for three issues identified below. Review of some issues is denied because they were not raised during the public comment period and therefore were not preserved for review. Review of most remaining issues is denied because they do not satisfy the regulatory criterion for review. Under the regulations, Petitioners are entitled to an evidentiary hearing only as to any genuine issue of material fact. Review of these issues raised by the petitions is denied because they do not satisfy the materiality requirement (i.e., resolution of the issue would not affect the outcome of the proceeding). The permit is remanded to the Region for resolution of the following three issues:

(1) Petitioners argue that the Region incorrectly estimated the limits the IWTP can consistently achieve for BOD5 and TSS because it based its estimate of the IWTP’s past performance on data from a twelve-month period, and because a twelve-month period is too short to reflect the variations in the IWTP’s past performance. The Region’s explanation of the method it used to determine the permit limits is too vague to permit a determination whether it is valid. Therefore, the permit is remanded for the Region to provide Petitioners with a detailed explanation as to how it determined the initial average monthly mass limits for BOD5 and TSS, and to consider whether an evidentiary hearing is warranted to resolve any issue of fact associated with determining these limits.

(2) Petitioners argue that the Region erroneously included four pages of specific pretreatment requirements in the permit that either duplicate or “go beyond” the provisions of the City’s approved pretreatment program, which the permit incorporates by reference. The mere fact that the four specific pages of pretreatment requirements either duplicate or “go beyond” the provisions of the approved pretreatment program does not alone warrant review. However, the Region’s various responses to Petitioners’ argument are self-contradictory and do not satisfy the Region’s regulatory obligation to respond to all significant comments on the draft permit during the public comment period. Therefore, the permit is remanded for the Region either to clarify its explanation of why these permit provisions are appropriate or to delete them.

(3) Petitioners request modification of the metals monitoring requirements of the permit to make them consistent with its State certification, which was modified after the issuance of the permit. On remand, the Region shall entertain Petitioners’ request for a modification of these conditions, consistent with the revised State certification.