Starting with a value of “4” for culpability and a value of “3” for human health, even assuming the lowest values for all other categories, including a value of "1" for both "environmental harm" and "toxicity," the lowest total gravity adjustment value would be a “9” and therefore would not lead to a downward adjustment of the base penalty. Accordingly, using the ERP, the resultant final penalty per violation would be $5,000 (or $5,500 for the violation occurring after January 30, 1997), with a total penalty of $160,500 - the same penalty we found appropriate above. III. CONCLUSION For the foregoing reasons, the ALJ's decision on remand is reversed. We find Microban liable for thirty-two violations of FIFRA section 12(a)(1)(B), 7 U.S.C. § 136j(a)(1)(B), and assess a total penalty of $160,500 against Respondent. Payment shall be made within thirty (30) days of this final order, by cashier's check or certified check payable to the Treasurer, United States of America, and forwarded to: United States EPA - Washington Post Office Lock Box 360277M So ordered. IN RE TECK COMINCO ALASKA INCORPORATED, RED DOG MINE NPDES Appeal No. 03-09 ORDER DENYING REVIEW IN PART AND REMANDING IN PART Decided June 15, 2004 Syllabus Kivalina Relocation Planning Committee ("KRPC") seeks review of Region 10's decision to issue a Final Permit Modification changing certain conditions of the National Pollution Discharge Elimination System (“NPDES") permit held by Teck Cominco Alaska Incorporated ("Teck Cominco") for its Red Dog Mine (the "Mine"). The NPDES permit authorizes Teck Cominco to discharge wastewater from the Mine into the Red Dog Creek, which is a tributary of Ikalukrok Creek in Northwest Alaska. The Permit Modification would establish new, less stringent limits for the Mine's discharges of Total Dissolved Solids ("TDS"). The Permit Modification establishes in-stream TDS concentration limits that include: (1) in the Mainstem of Red Dog Creek, a limit of 500 mg/l in the spring during arctic grayling spawning, and 1,500 mg/l after arctic grayling spawning; and (2) in Ikalukrok Creek, a limit of 1,000 mg/l prior to salmon spawning, and, during salmon spawning after July 25 of each year, a limit of 500 mg/l at station 160 located in Ikalukrok Creek. KRPC argues in its petition that (1) the Region's decision to issue the Permit Modification with a less stringent, in-stream TDS limit of 500 mg/l applicable during salmon spawning is not supported by the evidence in the record; (2) the Region erred in concluding that it has authority under 40 C.F.R. § 122.62 to issue the Permit Modification; (3) the Permit Modification violates the “antibacksliding" provision, 33 U.S.C. § 1342(0), because it contains less stringent effluent limits than the limits in the permit previously issued to Teck Cominco for the Red Dog Mine; and (4) the Permit Modification's TDS limits applicable to Red Dog Creek during arctic grayling spawning and to Ikalukrok Creek during salmon spawning violate Alaska's antidegradation regulations and 40 C.F.R. § 122.4. KRPC principally focuses on the impact on fish spawning from the 500 mg/l limit applicable to Red Dog Creek during arctic grayling spawning in the springtime (Permit Condition I.A.8.c) and on the 500 mg/l limit applicable in Ikalukrok Creek after July 25 of each year during salmon spawning (Permit Condition I.A.8.e.3). The central theme of KRPC's Petition is that a scientific report, known as the "ASTF Study," which the Region relied upon in deciding to issue the Permit Modification, contradicts the Region's conclusion that the new, less stringent TDS limits will have no adverse effects on spawning of arctic grayling and chinook (king) salmon. Held: The Board denies KRPC's petition in part, grants the petition in part, and remands the Permit Modification to the Region for further proceedings. 1. The Board rejects KRPC's argument that 40 C.F.R. § 122.62(a)(3)(i) prohibits modification in this case until EPA publishes in the Federal Register its approval of Alaska's amended statewide and site-specific water quality criteria. The Board holds that section 122.62(a)(3)(i)(C) does not establish a deadline for submitting a modification request in circumstances where, as here, no Federal Register publication of the predicate action is required by other law. Therefore, the fact that the Region's approval of Alaska's amended statewide and site-specific water quality criteria was not published in the Federal Register did not bar the Region's issuance of the permit modification based on such approval since Federal Register publication of such approval was not otherwise required by law. 2. The Board finds that KRPC's antidegradation arguments with respect to the TDS limit applicable to Ikalukrok Creek during salmon spawning after July 25 of each year were not preserved for appeal because they were not raised during the public comment period. The Board also finds, however, that KRPC's antidegradation arguments with respect to the TDS limit applicable to the Mainstem of Red Dog Creek during arctic grayling spawning were preserved for appeal. Generally, persons seeking review of a permitting decision under 40 C.F.R. part 124 must demonstrate that any issues being raised were raised during the public comment period. However, issues pertaining to changes from the draft to final permit decision may be raised for the first time on appeal. In the present case, the Permit Modification's condition limiting discharges during arctic grayling spawning (Permit Condition I.A.8.c) is a change from what was proposed in the draft permit modification and, accordingly, issues concerning that condition may be raised on appeal even if the issues were not raised during the public comment period. In contrast, the in-stream TDS limit in Ikalukrok Creek during king salmon spawning (Permit Condition I.A.8.e.3) was not changed between the draft and the final permit modification, and KRPC has not demonstrated that any public comment identified Alaska's antidegradation regulation as necessitating a more stringent TDS limit applicable to Ikalukrok Creek during salmon spawning. 3. The Board remands the TDS limit applicable during arctic grayling spawning to the Region for further proceedings. The Region failed to explain why, on July 17, 2003, it concluded that the Permit Modification does not violate Alaska's antidegradation rule when, one day earlier, on July 16, 2003, the Region had concluded that it did not have sufficient information to approve that same 500 mg/l TDS concentration as a site-specific water quality criterion and had issued an information request to Teck Cominco instructing it to conduct further studies to determine the TDS limit that would be protective of arctic grayling spawning. The evidence relied upon by the Region in its July 16 decision not to approve the arctic grayling spawning season portion of the site-specific water quality criterion was the ASTF Study that KRPC cites as support for its arguments for review of the Permit Modification. Without a detailed explanation for these two, seemingly contradictory decisions, the Board is unable to determine that the Region's decision to issue the Permit Modification was other than arbitrary and capricious. 4. The Board denies review of the limit applicable during salmon spawning after July 25 of each year for two reasons. First, the applicable regulation, 40 C.F.R. § 124.19(a), requires a petitioner to explain in the petition why the permit decisionmaker's previous response to the comments submitted during the public comment period is clearly erroneous or otherwise warrants review. KRPC's one sentence argument, supported by one citation, without any reference to the Region's extensive response to comments, does not satisfy the threshold requirement of explaining why the Region's response to comments is clearly erroneous. Second, to the extent KRPC argues that evidence in the record shows that Alaska's statewide water quality criterion for TDS is not adequately protective of the aquatic life "designated use" for Ikalukrok Creek, KRPC's argument is a challenge to the water quality standard itself and may not be heard in this forum. Evaluation of whether the water quality criteria are protective of the designated uses is part of the Agency's process for approving state water quality standards, and threshold issues pertaining to whether the Agency may have erred in approving the standard in the first instance are beyond the Board's jurisdiction. 5. With one exception, the Board denies KRPC's argument that the Permit Modification's less stringent TDS limits violate the “antibacksliding" prohibition in 33 U.S.C. § 1342(0). KRPC has made no attempt to demonstrate that questions regarding compliance with 33 U.S.C. § 1342(0) were raised during the public comment period. However, because the Permit Modification's TDS limit applicable to Red Dog Creek during arctic grayling spawning was significantly changed from the draft to the final permit, KRPC's antibacksliding argument may be considered on appeal to the extent that the argument relates to the TDS limit applicable during arctic grayling spawning. Because Agency policy favors final adjudication of most permits at the Regional level and because the Board determined to remand this limit on other grounds, the Board also remands the antibacksliding argument relative to the limit applicable to the Mainstem of Red Dog Creek during arctic grayling spawning for consideration as appropriate during the remand proceeding. Before Environmental Appeals Judges Scott C. Fulton, Edward E. Reich, and Kathie A. Stein. Opinion of the Board by Judge Reich: I. INTRODUCTION Kivalina Relocation Planning Committee ("KRPC") filed a timely petition seeking review of the decision by U.S. EPA Region 10 ("Region") to issue a Final Permit Modification, dated July 17, 2003 (the "Permit Modification"), which would change certain conditions of the Clean Water Act ("CWA") National Pollution Discharge Elimination System (“NPDES”) permit' held by Teck Cominco Alaska Incorporated ("Teck Cominco") for its Red Dog Mine (the "Mine"). The NPDES permit authorizes Teck Cominco to discharge wastewater from the Mine into the Red Dog Creek, which is a tributary of Ikalukrok Creek in Northwest Alaska. The Permit Modification would establish new, less stringent limits for the Mine's discharges of Total Dissolved Solids ("TDS"). See Administrative Record ("Admin. Rec.") #61 at 7-8 (Final Permit Modification, (July 17, 2003)). The existing NPDES permit, which was issued to Teck Cominco in 1998, limited TDS in the Mine's discharges to 176 milligrams per liter ("mg/l”) (monthly average limit) and 196 mg/l (maximum daily limit). The Permit Modification establishes TDS concentration limits at various points downstream from the discharge point in the Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of any pollutant from a point source into waters of the United States, except if the discharge is made in compliance with, among other things, an NPDES permit issued under CWA § 402, 33 U.S.C. § 1342. The NPDES program is the principal permitting program under the CWA. See CWA § 402, 33 U.S.C. § 1342. Mainstem of Red Dog Creek and in Ikalukrok Creek. Specifically, those limits on in-stream TDS concentration include: (1) in the Mainstem of Red Dog Creek, a limit of 500 mg/l in the spring during arctic grayling spawning, and 1,500 mg/l after arctic grayling spawning; and (2) in Ikalukrok Creek, a limit of 1,000 mg/1 prior to salmon spawning, and, during salmon spawning after July 25 of each year, a limit of 500 mg/l at station 160 located in Ikalukrok Creek. Id. KRPC argues in its petition that: (1) the Region's decision to issue the Permit Modification with a less stringent, in-stream TDS limit of 500 mg/l applicable during salmon spawning is not supported by the evidence in the record; (2) the Region erred in concluding that it has authority under 40 C.F.R. § 122.62 to issue the Permit Modification; (3) the Permit Modification violates 33 U.S.C. § 1342(0) because it contains less stringent effluent limits than the limits in the permit previously issued to Teck Cominco for the Red Dog Mine; and (4) the Permit Modification's TDS limits applicable to Red Dog Creek during arctic grayling spawning and to Ikalukrok Creek during salmon spawning violate Alaska's antidegradation regulations and 40 C.F.R. § 122.4. See Kivalina Relocation Planning Committee's Petition for Review (Aug. 14, 2003) (hereinafter “Petition"). As will be explained below, KRPC principally focuses on the impact on fish spawning from the 500 mg/l limit applicable to Red Dog Creek during arctic grayling spawning in the springtime (Permit Condition I.A.8.c) and on the 500 mg/l limit applicable in Ikalukrok Creek after July 25 of each year during salmon spawning (Permit Condition I.A.8.e.3). Although KRPC separated its arguments into four issues, the central theme of KRPC's Petition is that a scientific report, often referred to by the parties as the "ASTF Study" or the "Stekoll Report," which the Region relied upon in making its decision to issue the Permit Modification, contradicts the Region's conclusion that the new, less stringent TDS limits will have no adverse effects on spawning of arctic grayling and chinook (king) salmon. The full name of the report is Salmon as a Bioassay Model of Effects of Total Dissolved Solids (prepared for Alaska Science and Technology Foundation) (Feb. 3, 2003) by Michael S. Stekoll, William W. Smoker, Ivan A. Wang, and Barbi J. Failor. Administrative Record #16 (hereinafter "ASTF Study"). As explained more fully in our discussion in Part III below, we have decided to remand the permit conditions applicable during arctic grayling spawning for further proceedings consistent with this decision. Briefly, Alaska's antidegradation rule, in accordance with the federal antidegradation rule, prohibits discharges that would impair an existing use of the water body. The term "existing use" is defined in this context as any use that was attained in the water body on or after November 28, 1975. With respect to the permit condition allowing in-stream TDS concentrations up to 500 mg/l in the Mainstem of Red Dog Creek during arctic grayling spawning, we conclude that the Region failed to explain why, on July 17, 2003, it concluded that the Permit Modification does not violate Alaska's |