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words, "this appears to reflect a State decision not to allow such schedules." In other words, consistent with the Administrator's remark, there is factual as well as legal justification for interpreting a State's silence on schedules of compliance in the manner prescribed by the Administrator's decision. Also, petitioner's status report reveals that there are 12 other States with no explicit authorization, since "there is some uncertainty as to the States' intentions."7 Combining these 12 jurisdictions with the previous 7 produces a total of 19 jurisdictions in which it would be either wrong (7 jurisdictions) or imprudent (12 jurisdictions) for EPA to make a unilateral assumption that schedules of compliance are consistent with the States' wishes.8

To the extent the remark in the Administrator's decision may not accurately reflect an unwritten practice of a particular State, the State is on notice to conform its practices to the law.9 Thus, it will be necessary for the State to provide for schedules of compliance in a sufficiently prominent way to erase the legal presumption that otherwise is legitimately drawn from the State's silence. The responsibility of States under the law to make specific provision for schedules of compliance, rather than leaving it to the word-of-mouth policy of whoever may be in charge of the State's permit-issuing desk at any particular moment, is unequivocal. As the decision notes, EPA's regulations provide that each State is to have a “continuing planning process" in place that "must" describe "[t]he process for developing effluent limitations and schedules of compliance" and "for establishing and assuring adequate implementation of new or revised water quality standards, including schedules of compliance ***.” Administrator's Decision at n.17 (quoting 40 CFR

17,

§ 130.5(b)(1)&(6)). See also Clean Water Act §303(e)(3)(A)&(F). In view of the substantial confusion and uncertainty that the lack of an easily ascertainable policy can occasion, nothing short of adopting

6 Id. at 5.

7Id. (Declaration of Gary W. Hurdiburgh, Jr. at 7).

8 The Commonwealth of Puerto Rico, the jurisdiction that gave birth to the instant controversy, is in the process of amending its standards or implementing regulations to make express provision for schedules of compliance. See Petitioner's Status Report (Declaration of Gary W. Hurdiburgh, Jr. at 6).

9 According to petitioner's Status Report, 29 jurisdictions have provisions in their laws (water quality standards or related regulations, including permit regulations) that explicitly authorize schedules of compliance in NPDES permits. See Status Report (Declaration of Gary W. Hurdiburgh, Jr. at 5-6 (¶'s 12 & 14)). Six (6) others have begun, but not completed, the steps necessary to provide for such schedules. Id. (Declaration at 6 (¶ 14)).

explicit provisions in a State's regulations or water quality standards will suffice to overcome the presumption raised by a State's silence.

Petitioner's second argument is based more on practicality than on law or policy. Petitioner argues that section 401 of the Act enables States to fend for themselves against EPA-issued permits that might contain unwanted schedules of compliance, i.e., schedules which, in the opinion of the States, might possibly undercut their water quality standards. Petitioner cites this section of the Act because it allows States to exercise an effective veto power over any EPA-issued permit if the permit contains a schedule of compliance that is inconsistent with water quality standards. This argument also is not compelling. Although petitioner is correct that section 401 is available for that purpose, 10 it is well to keep in mind that the concerns of States are not the sole matters at stake. First, there is a matter of adherence to the law as it is written, not as petitioner might wish it had been written. Second, the interests of the public are given important recognition in the Clean Water Act. Specifically, the Act and implementing regulations require States to provide for public participation in setting water quality standards. See Administrator's Decision at 20 (citing CWA § 303(c); 40 CFR § 131.20). It is therefore appropriate to ask whether any purpose is served by inviting the general public to participate in developing state water quality standards without concurrently giving equivalent publicity to the possibility of later allowing individual permit applicants to bypass those standards, albeit temporarily, pursuant to relaxed schedules of compliance. Petitioner does not address this question-or, more importantly, the concern underlying it-anywhere in its several submissions. 11 We believe the open process contemplated by the regulations, which calls for

10 In his decision, the Administrator specifically acknowledged the States' right to exercise this power, but he observed that "EPA's longstanding practice of adding schedules of compliance under the aegis of the 1978 legal opinion may have misled the States into believing they lack this authority insofar as the schedules are concerned." Administrator's Decision at 16, n. 15.

11 Although the public may participate in proceedings for the issuance of individual permits, and object to overly generous schedules of compliance, the absence of a written policy on schedules of compliance may lull the public into believing that there are no exceptions to immediate compliance, and therefore little reason to monitor individual permits. The same effect on the public is produced if the policy is written but can only be found in unpublished internal memoranda. Cf. Anthony, Robert A. "Well, You Want The Permit Don't You?" Agency Efforts to Make Nonlegislative Documents Bind the Public, 44 Ad. Law Rev. 31, 33 (Winter 1992) (“If the [nonlegislative] document is an internal memo to staff that is not published, there is the additional problem of secret law, whereunder affected parties do not know the principles by which their affairs are governed unless they have back-channel sources within the agency.").

States to make specific provisions for their policies on schedules of compliance, makes for a more vigilant and informed public and thereby serves the greater interests of the policies underlying the Clean Water Act.

Petitioner's last argument, that irrational results will ensue from the Administrator's decision in the context of section 304(1) of the Act, is actually an effort to reargue and refine points previously presented in earlier phases of this proceeding. Those arguments were rejected then 12 and are rejected again now. Section 304(1) was enacted on February 4, 1987,13 nearly 15 years after enactment of the principal statutory provisions construed in the Administrator's decision. 14 To argue in the space of one short paragraph, as petitioner does, 15 that this subsequently enacted statutory provision should somehow prevail over the entirety of the comprehensive statutory scheme interpreted by the Administrator falls short of the task. In any event, the simple truth is that no "irrational results" ensue from the Administrator's decision, as an examination of petitioner's concerns quickly discloses.

According to petitioner, the Administrator's decision would give rise to a situation where persons who discharge toxic waste into designated toxic hot spots would be allowed up to three years under section 304(1) to come into compliance with water quality standards, but dischargers who are discharging into streams not so designated— presumably less heavily polluted waters-would be denied similar extensions. The short answer to this charge is that it is possible, in some instances, for the States to modify their water quality standards (including associated provisions, if any, for schedules of compliance) for the less heavily polluted streams in order to reduce some or all of the disparity envisioned by petitioner. 16 Even if modification is not feasible or desirable, it must be kept in mind that eliminating

12 See Administrator's Decision at 6, n.5.

13 Water Quality Act of 1987, PL 100-4, § 308, 101 Stat. 7, 38 (February 4, 1987). 14 The principal statutory provisions considered by the Administrator in his decision are §§ 101(a) and (b), 301(b)(1)(C), 303(e)(3)(A) and (F), 304(1), 401(a)(1), 402(a)(3), 402(b)(1)(B), 402(k), 502(17), and 510. Except for § 304(1), all of these provisions were first enacted as part of the Federal Water Pollution Control Amendments of 1972, Pub. Law No. 92-500, 86 Stat. 816, et seq. (October 18, 1972), and none has undergone any material change since that time.

15 Petition at 5.

16 Any modification of water quality standards must be carried out in accordance with EPA regulations, including applicable antidegradation policies. See generally CFR Part 131 (Water Quality Standards). In addition, effluent limitations in any permits issued pursuant to a modification would have to be consistent with anti-backsliding requirements or an exception thereto. See generally CWA §§ 402(o) & 303(d)(4).

disparities that result from geography should not be a paramount concern, particularly if the disparity flows from the structure of the statutory scheme, as is often the case. Examples of such disparities in the law of pollution control are not unknown despite the fact that relative economic advantages or disadvantages may accrue to individual polluters depending on their location. The Clean Air Act, for example, draws distinctions between areas close to certain national parks and wilderness areas and those that are not, with the result that those close enough to have an effect on those areas are subject to more rigorous requirements. See, e.g., CAA § 165(d)(2)(C)(ii) (protecting "air quality-related values" of such areas in addition to conventional "increment" protection); 42 USCA §7475(d)(2)(C)(ii). Finally, petitioner overlooks the fact that notwithstanding these disparities some States might not want to relax compliance dates for their less heavily polluted streams. They might wish instead to see higher standards of compliance observed for those streams, thereby preserving their relative purity vis-a-vis toxic hot spots. In our opinion, therefore, there is nothing irrational about the results of the Administrator's decision as construed and applied in the context of section 304(1).

Accordingly, the petition of EPA Region II is denied and the stay of the Administrator's decision, entered on September 4, 1990, is hereby lifted.

So ordered.

IN THE MATTER OF MINERS ADVOCACY COUNCIL

NPDES Appeal No. 91-23

ORDER DENYING REVIEW IN PART AND GRANTING
REVIEW IN PART

Decided May 29, 1992

Syllabus

In 1991, U.S. EPA Region X issued a set of virtually identical NPDES permits to placer miners in Alaska. An industry trade group, the Miners Advocacy Council (“MAC”) requested an evidentiary hearing on numerous conditions in the permit. MAC now appeals the Regional Administrator's decision to deny an evidentiary hearing with respect to eleven of those issues.

Held: Review is granted on the issue of whether 40 CFR § 125.3, which requires a permit writer to consider the “process employed" in setting case-by-case limitations in technology-based permits, precludes the Region from dividing the integrated placer mining process and authorizing discharges from one part of that process (sluicing) while not authorizing discharges from another part of that process (hydraulic removal of overburden). This is a legal issue and hence not suitable for an evidentiary hearing. It will be decided in accordance with the briefing schedule set forth in the order. Review is denied on the other issues raised in the petition.

Ronald

Before Environmental Appeals Judges L. McCallum, Edward E. Reich, and Timothy J. Dowling (Acting).

Opinion of the Board by Judge Reich:

In 1991, U.S. EPA Region X issued a set of 31 virtually identical NPDES permits to individual placer miners in Alaska. The Miners Advocacy Council (“MAC”) requested an evidentiary hearing on numerous provisions of the permits. MAC is not a permit holder but rather is a trade association representing the affected industry. Pursuant to 40 CFR § 124.75, the Regional Administrator denied an evidentiary hearing on many of those provisions and MAC now seeks review of the Regional Administrator's denial. As requested by the

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