IN THE MATTER OF SINGLETON SPRAY SERVICE CO., ET AL. FIFRA Appeal No. 84-1 FINAL DECISION Decided May 19, 1986 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: Singleton Spray Service Co., along with respondents Thomas and Esther Singleton, appeal an initial decision of an Administrative Law Judge (presiding officer) assessing $10,000 in civil penalties against respondents for violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and its implementing regulations. In his initial decision the presiding officer held that, as charged in Count I of the complaint, Company employees, who were neither certified applicators nor operating under the direct supervision of a certified applicator, applied restricted use pesticides on 400 separate occasions during the 1981 spray season (i.e., from July 1981 through October 1981) in violation of FIFRA §§ 12(a)(2)(F) and 12(a)(2)(G).1 The Chief Judicial Officer, as the Administrator's delegatee, has the authority to decide this appeal pursuant to 40 CFR § 22.31 (1985). After consideration of the record in its entirety, I conclude that respondents have shown no error of fact or law or abuse of discretion in the initial decision. The initial decision is, therefore, affirmed and the findings of fact, conclusions of law and reasons therefore are adopted and incorporated herein by reference.2 1 Count II of the complaint charges that Company employees acting within the scope of their employment illegally dumped unused pesticides in an area open to the public. The presiding officer dismissed Count II for insufficient evidence. Region IX has not appealed the presiding officer's dismissal of Count II. 2 That an appellate administrative tribunal may adopt the findings, conclusions, and rationale of a subordinate tribunal without extensive restatement is well-settled. United States v. Orr, 474 F.2d 1365 (2d Cir. 1973); Carolina Freight Carrier Corporation v. United States, 323 F.Supp. 1290 (W.D.N.C. 1971); In re Chemical Waste Man ORDER Respondents are ordered to pay the $10,000 civil penalty assessed in the initial decision. Payment must be made within 60 days after receipt of this ORDER by sending a cashier's check, payable to the Treasurer, United States of America, to EPA-Region IX (Regional Hearing Clerk) P.O. Box 360863M, Pittsburgh, PA 15251. So ordered. agement, Inc., RCRA (3008) Appeal No. 84-8, Order Adopting the Presiding Officer's Initial Decision as Final Agency Action (September 5, 1984); and cases cited in Ciba Geigy v. Farmland Industries, FIFRA Comp. Dkt. Nos. 33, 34 and 41 (Opinion of the Judicial Officer, April 30, 1981). IN THE MATTER OF QUIVIRA MINING CO. NPDES Appeal No. 84-2 ORDER DENYING REVIEW Decided May 19, 1986 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: Quivira Mining Co. (Quivira) petitions the Administrator for review of EPA Region VI's denial of its request for an evidentiary hearing on the above-referenced NPDES permit. The Chief Judicial Officer, as the Administrator's delegatee, has the authority to consider petitions for review pursuant to 40 CFR § 124.91 (1985). For the reasons set forth below, Quivira's Petition for Review is denied. A petition for review is not normally granted unless the Regional Administrator's decision is clearly erroneous or involves an exercise of discretion or policy that is important and therefore should be reviewed as a discretionary matter. Boston Edison Company, NPDES Appeal No. 78-7, August 28, 1978; Kerr-McGee Nuclear Corporation (Church Rock Facility), NPDES Appeal No. 80-3, May 15, 1980. The regulations do not confer an automatic right of review. The burden of demonstrating that review should be granted is on the petitioner. Quivira raises two arguments in its petition. First, Quivira argues that EPA does not have jurisdiction over its discharges; thus it should not be required to obtain an NPDES permit. Second, Quivira argues that if it is required to have an NPDES permit, the Region erroneously included in the permit the provisions contained in the State certification. Quivira's arguments are discussed below in turn. The issue of whether the Agency has jurisdiction over Quivira's discharges was resolved in Kerr-McGee Nuclear Corporation, NPDES Appeal No. 83-5, Order Denying Petition for Review, dated August 5, 1983. (Quivira Mining Company is Kerr-McGee's successor in inter est.) In Kerr-McGee I held that the arroyo (Arroyo del Puerto) into which the company discharged its effluent was a "water of the United States"-despite Kerr-McGee's arguments to the contrary-and thus EPA had the authority under the Clean Water Act to issue the NPDES permit being contested in that case. That holding was affirmed by the U.S. Court of Appeals for the tenth circuit in Quivira Mining Company and Homestake Mining Company v. EPA, 765 F.2d 126 (1985), with the Supreme Court recently denying certiorari in the case, 106 S.Ct. 791 (1986). In its petition, Quivira makes the same "dry arroyo" or "ephemeral stream" arguments, challenging the Agency's regulatory authority over its discharges, as Kerr-McGee made in the earlier case. The permit currently being contested here by Quivira is for discharges from the same uranium mine (the Ambrosia Lake Uranium Mine) to the same arroyo (Arroyo del Puerto) as involved in my earlier Kerr-McGee decision. Indeed, the Regional Administrator relied (in part) on my earlier holding in Kerr-McGee when he denied Quivira's request for an evidentiary hearing. In its petition Quivira offers no new facts that would cause me to depart from my earlier decision holding that Arroyo del Puerto is, for purposes of the Clean Water Act, a "water of the United States." Thus Quivira is required to obtain an NPDES permit for discharges from its Ambrosia Lake Uranium Mine to the Arroyo. Secondly, Quivira challenges certain requirements imposed in its permit through the State certification process, claiming that the challenged requirements are unnecessary to assure compliance with the Clean Water Act. It is well-settled that the Agency has no jurisdiction to review State certified requirements that a permittee considers unnecessary (or more stringent than necessary) to assure compliance with the Clean Water Act.2 The requirements in question certified by the State are monitoring requirements for Polonium-210, Barium, Manganese, and Lead-210. Quivira also challenged insertion into its permit of certain State-certified water quality standards, which Quivira did not specifically identify for the appeals record. 2 Stated another way, the Agency may not “look behind" a State certification. "Limitations contained in a State certification must be included in an NPDES permit." EPA, Decision of the General Counsel No. 58 (March 2, 1977); see also Decision of the General Counsel No. 44 (June 22, 1976). However, it should be noted that the Agency must disregard State-certified limitations or requirements that are less stringent than those contained in the permit. 40 CFR § 124.55(c) (1985). (That is not the case here.) More stringent requirements are a different matter. The Clean Water Act preserves a State's right to enact its own antipollution measures even if they are more stringent than necessary to comply with the CWA. CWA $510. Continued 40 CFR § 124.55 states: Effect of State Certification (e) Review and appeals of limitations and conditions Courts have consistently agreed with this, "ruling that the proper forum to review the appropriateness of a state's certification is the state court, and that federal courts and agencies are without authority to review the validity of requirements imposed under state law or in a state's certification. See United States Steel Corporation v. Train, 556 F.2d 822, 837-39 and n. 22 (7th Cir. 1977); Lake Erie Alliance v. U.S. Army Corps of Engineers, 526 F.Supp. 1063, 1074 (W.D. Pa. 1981); Mobil Oil Corp v. Kelley, 426 F.Supp. 230, 234– 35 (S.D. Ala. 1970)." Roosevelt-Campobello International Park Commission v. EPA, 684 F.2d 1041, 1056 (1982). Accordingly, the Region properly denied Quivira's request for an evidentiary hearing (which it made pursuant to Part 124, i.e., 40 CFR § 124.74) to review the "appropriateness of the State certification." The proper forum for such review is at the State level. For all the foregoing reasons Quivira has not shown that Region VI's decision was either clearly erroneous or involved a discretionary matter that I should review. 40 CFR § 124.91. The petition for review is therefore denied. So ordered. * ** Roosevelt-Campobello International Park Commission, 684 F.2d 1041, 1056 (1982). (Indeed, States are free to adopt and enforce antipollution requirements that "force technology even at the cost of economic and social dislocations caused by plant closings." United States Steel Corporation v. EPA, 556 F.2d 822 (7th Cir. 1977). See also EPA v. California ex rel State Water Resources Control Board, 426 U.S. 200, 219, 96 S.Ct. 2022, 2031, 48 L.Ed 2d 578 (1976); State of Minnesota v. Hoffman, 543 F.2d 1198, 1208 (8th Cir. 1976)). And, a State may certify (indeed, a State must certify) any such more stringent limitations or requirements for inclusion in the NPDES permit. CWA § 401(d). |