to issuance of such permits. This concurrence requirement fits in with the statutory scheme of the Act which, as described, requires EPA to defer to the State when the State chooses to impose more stringent limitations. In this case, the PCHB determined that Washington's pollution control laws require secondary treatment for Port Angeles' POTW regardless of whether Port Angeles would qualify for a waiver under federal law. The rationale that precludes EPA from reviewing more stringent conditions in State certifications under section 401(a) applies with equal force to review of negative State determinations under section 301(h).

Since EPA is precluded as a matter of law from looking behind the State's negative determination, the Regional Administrator did not err in basing her denial of the waiver on the DOE's determination.

C.

Port Angeles' claim that the Region's denial of an evidentiary hearing is erroneous is without merit, for Port Angeles did not raise any factual issues in its request for a hearing, only legal ones. Under EPA's rules the Regional Administrator must deny a request for an evidentiary hearing if, as here, no factual issues relevant to issuance of the waiver are raised.9

D.

Port Angeles also requests review on the grounds that the Regional Administrator's actions constitute an exercise of discretion or policy that is important and that the Administrator should review. I disagree. The Regional Administrator's decision to deny the section 301(h) waiver was an appropriate exercise of discretion and does not warrant review. Unless a waiver is obtained, the Act requires POTWs to be in compliance with the secondary treatment requirements by no later than July 1, 1988. To meet this goal (absent a waiver), the Agency's National Municipal Policy for POTWs requires most municipalities-specifically, the ones that need to construct a wastewater treatment facility to achieve compliance to submit a plan to the permitting authority by October 1985 that establishes

9 Port Angeles requested a hearing to challenge denial of the waiver on grounds that there had “been no legally binding State determination that the City's discharge will not be in compliance with the applicable provisions of State law." Request for Evidentiary Hearing, p.3. This is an issue of law, not of fact, and one that is discussed on pages 3-8 [270-273] of this Order. Indeed, Port Angeles does not argue on appeal that it presented factual issues appropriate for an evidentiary hearing.

enforceable compliance schedules. 49 Fed. Reg. 3832 (January 30, 1984). The purpose of this requirement is to ensure that municipalities will begin any necessary construction and other preparatory work in advance of the deadline so that they will be able to meet the deadline when it arrives. The Region's decision on Port Angeles' waiver application conforms with this purpose. 10

The Regional Administrator's decision also follows the policy outlined by EPA in the preamble to the section 301(h) regulations, previously discussed, which is to deny a waiver immediately upon receipt of a negative determination.

Given the Act's requirement for POTWs to be in compliance with secondary treatment requirements by July 1988, it was reasonable for the Regional Administrator to deny the waiver based on the DOE's negative determination and not wait until completion of the State judicial process. Therefore, I find no abuse of discretion or important policy determination in the Regional Administrator's decision.

In sum, Port Angeles has not shown that the Region's decisions denying its section 301(h) waiver application and its request for an evidentiary hearing are clearly erroneous or involve a discretionary matter that the Administrator should review. For all the foregoing reasons, Port Angeles' request for review of the Region's refusal to withdraw denial of the waiver pending completion of State court review is also denied. Accordingly, the Petition for Review is denied.

So ordered.

10 Federal courts have held that even if a municipality has a section 301(h) application pending with the Agency, it must take steps to comply with the Act's secondary treatment requirements. U.S. v. Metropolitan District Comm., 23 ERC 1350 (D.C. Mass. 1985); NRDC v. EPA, 656 F.2d 768 (D.C. Cir. 1981). "[I]t is well established as a general principal [sic] of environmental law that waiver requests and appeals from decisions on those requests are 'on the polluter's time'" U.S. v. Metropolitan Dist. Comm. 23 ERC at 1357 quoting Train v. NRDC, 421 U.S. 60, 92 (1975). Despite this fact, it has been reported that many communities that should be well into the construction of secondary treatment facilities have instead spent financial resources pursuing waivers. CLEAN WATER ACT AMENDMENTS of 1983, S. Rep. No. 233, 98th Cong., 1st. Sess. 6 (1983).

IN THE MATTER OF TEXAS INDUSTRIES, INC.

PSD Appeal No. 86-2

ORDER DENYING REVIEW

Decided September 24, 1986

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Lee M. Thomas, Administrator:

In a petition filed pursuant to 40 CFR § 124.19 (1985), Judith Lochbrunner of Midlothian, Texas requested review of a Prevention of Significant Deterioration (PSD) permit determination that will authorize Texas Industries, Inc. to modify its existing cement plant in Ellis County, Texas, northwest of Midlothian, to construct a coalfired cogeneration facility. The determination to issue the permit was made on February 19, 1986, by the Director, Air, Pesticides and Toxics Division, U.S. Environmental Protection Agency, Region VI, Dallas, Texas. Technical review of the permit application was carried out by the Texas Air Control Board (TACB) pursuant to EPA Region VI's PSD delegation agreement with the State of Texas.

Petitions for review of PSD permits are not usually granted unless the permit determination is clearly erroneous or involves an exercise of discretion or policy that is important and therefore should be reviewed as a discretionary matter, 40 CFR § 124.19(a)(1) and (2). The preamble to the regulations containing this standard states that "this power of review should be only sparingly exercised [and] *** most permit conditions should be finally determined at the Regional level ***" 45 Fed. Reg. 33412 (May 19, 1980). The burden of demonstrating that the permit conditions should be reviewed is therefore on the petitioner.

In support of review petitioner claims that a sulfur odor problem in the area is being caused by local industries, in particular the coal-burning Texas Industries' cement plant. According to petitioner this problem will be exacerbated under the terms of the new PSD

permit because it allows the maximum hourly rate of SO2 emissions to increase during periods of peak production. The record shows that peak production periods are restricted to 300-hours per year and that the current allowable SO2 emissions peak production rate of 5632 lbs/hr will be modified to permit a maximum rate of 5774.4 lbs/hr, representing an increase of 142.4 lbs/hr.1 Petitioner nevertheless acknowledges uncertainty as to the cause of the sulfur odor. Specifically, petitioner concedes that a Texas Air Control Board investigation has determined that the odor is not SO2 and that the exact cause has not yet been determined by the Board. According to petitioner, a permit should not be issued until a full understanding of the problem is gained and the Board has found the exact cause of the odor; until such time petitioner requests that the permit application be held in abeyance.

EPA Region VI responded to the petition by pointing to a net decrease in annual SO2 emissions (in contrast to the limited increase in the hourly rate of SO2 emissions during peak production periods) and the construction of 350-foot stacks for the cogeneration facility, which should assure better dispersion of emissions (the cement plant has 200-foot stacks), and by asserting that "odor problems cannot form the basis of EPA's decision to refuse to issue a PSD permit." 2 Response at 4. According to Region VI, odor problems fall under the Texas Air Control Board's jurisdiction and are regulated by State law; 3 therefore, the petition for review should be denied.

1 Total annual SO2 emissions will decrease by 2099 tons per year (tons/yr) from the current level of 24,668 tons/yr. The new level will be 22,569 tons/yr.

2I agree that odor is not a basis for refusing to issue a PSD permit, since odor is not a regulated pollutant under the Clean Air Act. At most, odor might be a basis for modifying a PSD permit. For example, odor may be taken into account as an "environmental impact" when the agency makes its "best available control technology" (BACT) determination for regulated pollutants under the Clean Air Act. 42 USC §§ 7475(a)(4), 7479(3). Taking odor into account as an environmental impact during a BACT determination could result in emission limitations for regulated pollutants being fixed at levels more stringent than would otherwise be the case. North County Resource Recovery Associates, PSD Appeal No. 85-2 (Order on Remand, June 3, 1986). In this instance, petitioner asserts that the source of the odor problem is SO2 emissions from local industry, particularly the Texas Industries' coal-burning plant. However, petitioner has submitted no empirical evidence to substantiate this allegation. Moreover, an investigation by the Texas Air Control Board indicates that odor problems in the area are not attributable to SO2. Accordingly, based on information in the record as it currently stands, it appears that the Agency would have had no reason to take odor into account as an environmental impact during its BACT determinations when it fixed emission limitations for SO2 in the PSD permit.

3 The Texas Air Control Board similarly claimed that "EPA has no regulations under its jurisdiction to control odor," but advised that persistent odor problems could be dealt with under the Texas Air Act. TACB Response to Public Comments at 7.

In my opinion petitioner has not shown that the permit determination is either clearly erroneous or involves an issue that should be reviewed as a matter of discretion. Petitioner's grounds for review are simply too speculative to provide a lawful basis for withholding or denying a permit. According to Region VI, computer modeling of the emissions indicates that there are no locations where the total predicted concentrations of any air pollutant, including SO2, would exceed the relevant emissions standards under which EPA makes its permit determinations. 4 Petitioner in no way disputes these results. Moreover, these results cast doubt on the validity of petitioner's assertions respecting the source of the sulfur odor, for the odor threshold for SO2 is over seven times greater than the 24-hour NAAQS for SO2. 51 Fed. Reg. 18438 (May 20, 1986). In other words, odor attributable to SO2 sources should not be detectable unless the concentration of SO2 in the ambient air exceeds the national standards by a factor of seven. Less speculation and more empirical evidence is needed by petitioner to justify review of the permit.

For the reasons stated above, it is my conclusion that review of EPA's permit determination is not warranted; therefore, the petition for review is denied. In accordance with 40 CFR § 124.19(f)(2), the Regional Administrator or his delegatee shall publish notice of this final action in the Federal Register.

So ordered.

4 The following table from page 3 of EPA's response shows the results of the air quality analysis for sulfur dioxide: