IN THE MATTER OF HOMESTAKE MINING COMPANY NPDES Appeal 84-5 ORDER DENYING REVIEW Decided May 19, 1986 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: Homestake Mining Company (Homestake) 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 decide this petition pursuant to 40 CFR § 124.91. A petition for review is not normally granted unless the Region'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. 83-2, July 21, 1983. The regulations do not confer an automatic right of review. The burden of demonstrating that review should be granted is on the petitioner. As discussed below, Homestake has failed to meet its burden here. Accordingly, its petition for review is denied. Homestake raises three arguments in its petition. It argues that it should not be required to obtain an NPDES permit since EPA does not have jurisdiction over its discharges. Alternatively, Homestake argues that if it is required to have a permit, the Region erroneously included certain requirements from the State certification in such permit. Finally, Homestake argues that certain conditions in the permit should have been modified to reflect proposed changes I Homestake discharges into Arroyo del Puerto, which it characterizes as a "normally dry arroyo" except for intermittent precipitation and the discharges themselves. See Petition for Review, p. 1; Request for Evidentiary Hearing, p. 4. in the NPDES permit regulations. Such changes were proposed as a result of a settlement agreement in NRDC v. EPA, No. 80-1607 (D.C. Cir., filed June 2, 1980).2 Homestake's arguments are discussed below in turn. over The issue of whether the Agency has jurisdiction Homestake's discharges was resolved in United Nuclear-Homestake Partners, NPDES Appeal No. 83-6, Order Denying Petition for Review, dated August 5, 1983. (Homestake succeeded to United NuclearHomestake Partners' interest.) In United Nuclear-Homestake Partners I held that the arroyo (Arroyo del Puerto) into which the company discharged its effluent was a "water of the United States"-despite UNHP'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, Homestake challenges the Agency's regulatory authority over its discharges by making the same "dry arroyo" or "ephemeral stream" arguments as UNHP made in the earlier case. The permit currently being contested here by Homestake is for discharges from the same uranium mine to the same arroyo (Arroyo del Puerto) as involved in my earlier UNHP decision. Indeed, the Regional Administrator relied (in part) on my earlier holding in UNHP when he denied Homestake's request for an evidentiary hearing. In its petition Homestake 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 Homestake is required to obtain an NPDES permit for discharges from its uranium mine to the Arroyo. Secondly, Homestake 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.3 It is well-settled that the Agency has 2 The NPDES permit regulations were challenged in court by both industry and public interest groups. The cases were consolidated into a single action in the United States Court of Appeals, D.C. Circuit (NRDC v. EPA, No. 80–1607). EPA entered into a settlement agreement with industry petitioners and agreed to propose modifications to the regulations. 3 The requirements in question certified by the State are monitoring requirements for Polonium-210, Barium, Manganese, and Lead-210. Homestake also challenged in 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.4 40 CFR § 124.55 states: Effect of State Certification (e) Review and appeals of limitations and conditions Courts have consistent ly 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 certifica tion. See United States Steel Corporation v. Train, 556 F.2d 822, 837-839 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, 23435 (S.D. Ala. 1970)." Roosevelt Campobello International Park Commission v. EPA, 684 F.2d 10 41, 1056 (1982). Accordingly, the Region properly denied Homestake's request for an evidentiary hearing (which it made pursuant to Part 124, i.e., 40 CFR § 124.74) to review sertion into its permit of certain State-certified water quality standards which Homestake did not specifically identify for the appeals record. 4 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 2: 2, 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 situation here.) More stringent requirements are a different matter. The Clean Water Act preserves a State's right to en act its own anti-pollution measures even if they are more stringent than necessary to comply with the CWA. CWA $510. Roosevelt-Campobello International Park Commission, 684 F.2d 1041, 1056 (1982). (Indeed, States are free to adopt and enforce antipollution requirements which "force technology even at the cost of economic and social dislocations caused by plant closings." United States Steel Corporation v. PA, 556 F.2d 8.22 (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 (1975) and 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). the "appropriateness of the State certification." The proper forum for such review is at the State level.5 Finally, Homestake argues that the Flegional Administrator should have incorporated certain proposed revisions to the NPDES regulations in its permit. In that regard, in its request for an evidentiary hearing, Homestake stated: The *** NPDES permit should be written in such Homestake seems to be making two separate claims. First, Homestake claims that the changes to the NPDES regulations proposed as a result of the Settlement Agreement in NRDC v. EPA should be incorporated into its final permit despite the fact that, at the time its final permit was issued, the regulations containing such changes were still in their proposed form and had not yet been promulgated as final rules.6 Secondly, Homestake seems to be claim 5 In an additional argument related to S tate certification, Homestake argues that the Region erred by including a pH limit of between 6.6 and 8.6 in the permit because the State did not impose that limit (nor indeed any pH limit) in its certification. While technically it is true that the State certification specifies no pH limitation, it is apparent from the record that a pH limit of between 6.6 and 8.6 is a State requirement and, like other State 1 requirements, must be included in an EPA issued permit, CWA §301(b)(1)(C), regardless of whether or not it is certified by the State. See letter from Anthony Drypolcher, Environmental Improvement Division, Health Environment Department, State of New Mexico dated July 14, 1983, in reply to request for specification of basic conditions of certification required by New Mexico from Robert Hannes schlager, U.S. EP A; see also Fact Sheet pp. 2 and 3. As with any other State requirement, the validity of the requirement itself is only subject to challenge in the State courts. 6 Homestake, seems to be requesting incorporation in its permit of all the changes (which would have the effect of "reducing the regulatory burdens imposed" on it) ing that its permit should contain a clause providing for the modification of its permit as the proposed rules become final. Neither of these claims has merit. * * * With regard to Homestake's claim that the proposed changes should have been incorporated into its permit, the Regional Administrator explained that "[t]he permit is drafted in accordance with the regulations] as promulgated [when the permit was issued.]" Response to Comments at 2. I agree. Permit terms and conditions cannot be based on proposed rules since they are tentative and may change before being promulgated in final form. This point was clearly made in State of Alabama v. EPA, 557 F.2d 1101, 1110 (5th Cir. 1977).7 In that case the Court stated: We affirm EPA's conclusion that the appropriate BPT proposed as a result of the NRDC Settlement Agreement. However, in its request for an evidentiary hearing it specifically identified only a limited number of proposed changes. 7 See also 40 CFR § 122.43(b)(1) (1985). 8 The Court continued: "Moreover, ongoing permitting] proceedings should not be interrupted when proposed regulations become final." Nevertheless, EPA's current procedures do allow for the interruption of permitting proceedings when proposed regulations become final during the course of such proceedings and a party to the proceedings requests permit modification based upon the new regulations. In that regard 40 CFR § 124.86(c) (1986) states: [A]ny party may file with the Presiding Officer a motion seeking Presiding Officer may grant a motion to apply a new regulatory It should be noted that 40 CFR § 124.86(c) (1986) modifies EPA's decision in U.S. Pipe and Foundry Company, NPDES Appeal No. 75-4, Decision of the Administrator (October 10, 1975), which states: [T]o allow permit limitations and conditions to change according Continued |