IN THE MATTER OF CITY OF FAYETTEVILLE,

ARKANSAS

NPDES APPEAL No. 86-1

ORDER DENYING REVIEW

Decided May 23, 1986

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Louise Doherty Jacobs, Judicial Officer:

An NPDES permit issued recently by Region VI to the City of Fayetteville provides for part of the City's wastewater to be discharged into Mud Creek, an Arkansas waterway which empties into Oklahoma's Illinois River.

The State of Oklahoma and STIR (an Oklahoma citizens' group organized to "Save The Illinois River") have challenged the permit: the record contains some 3,000 pages of commentary supporting their challenge, ranging from studies of the River's chemical and biological condition to emotional appeals on behalf of generations of families who have used the river to fish and to swim.

Much commentary and opposition in response to other alternatives considered over the years for discharging the Fayetteville waste had preceded the decision to issue the permit. Arkansas' Beaver Lake, for example, was said to have been endangered by earlier alternate plans.1

The City has been in noncompliance with its discharge permit for some time; its compliance deadlines have been extended by administrative order.

To adjudicate their challenges to the permit decision, both Oklahoma and STIR requested an evidentiary hearing. The Regional Ad

1 For a plethora of documentation on the nature and intensity of the dispute, see Vol. 2 NPDES Permit File, p. 509 et seq.

ministrator granted parts of their hearing requests and denied other parts. Oklahoma and STIR have asked the Administrator to review the Regional Administrator's partial denial. The City of Fayetteville has requested him to review the partial grant.

As Judicial Officer named to act for the Administrator in deciding these appeals, I have reviewed carefully the extensive permit issuance record, and the well-crafted pleadings. I find that the City's appeal to cancel the hearing is not well founded, and that the Regional Administrator's decision to conduct a hearing on certain subjects includes in its present form all relevant legal and factual questions raised by Oklahoma and by STIR. Review therefore will be denied.

THE ISSUES

Oklahoma asked the Regional Administrator to conduct an evidentiary hearing on the following objections: (1) that an environmental impact statement should have been provided prior to the grant of the permit; (2) that the permit is invalid for failure to observe the Clean Water Act's requirements for protection of neighboring waters; (3) that the City's untested technology can't provide the advanced wastewater treatment the permit requires; (4) that the permit should be amended to prohibit splitting Fayetteville's discharge between Mud Creek and the White River, on three separate grounds: that it's not needed to protect the uses of Arkansas streams; that a proper basis hasn't been shown for the split allocation; and that it may cause irreversible damage to the Illinois River; and (5) that in general, conditions and safeguards provided in the permit aren't sufficient to protect the Illinois River.

STIR's request for an evidentiary hearing was based on issues less clearly defined. They were read by the Region, without contradiction by STIR, to be synonymous with Oklahoma's objections.

The Regional Administrator agreed to conduct an evidentiary hearing on two questions: (1) whether the City's technology is adequate to provide the treatment required by the permit; and (2) whether the discharge allowed by the permit will violate Oklahoma's water quality standards. This response was viewed as equivalent to denial of hearing on all issues except the third (i.e., availability of necessary technology).

The City of Fayetteville has appealed the Regional Administrator's decision to grant a hearing.

STIR has appealed denial of hearing on issues 1, 2, 4, and 5.

Oklahoma has appealed the denial of issues 2, 4, and 5, and is silent as to the denial of the hearing on the EIS question, issue number 1.

ANALYSIS

Turning first to the City's petition, I find it, as noted above, not well founded. A Regional Administrator's decision to grant an evidentiary hearing on a permit is not subject to review; it is entirely within his discretion to consider again in an evidentiary hearing his earlier decision to issue the permit.2 Fayetteville's petition must therefore be denied.

Likewise, the Regional Administrator's decision to deny hearing on the need for an environmental impact statement, appealed only by STIR, is not appropriate for review, as Oklahoma has tacitly acknowledged by its failure to request review of that issue. No environmental impact statement is necessary or customary immediately preceding the issuance of an NPDES permit.3 And the record shows that the equivalent of an EIS was issued by the Region in conjunction with the City's request for funding of advanced treatment facilities, on April 13, 1984, in the form of a finding of no significant impact following environmental assessment.4

Hearing on the three other issues-appealed by both STIR and by Oklahoma (issues 2, 4, and 5) was not really fully denied, although some of the documents in the case treat them as though it had been.

2 A deciding official has authority to reconsider his own decisions, unless reconsideration is specifically proscribed. Bookman v. U.S., 453 F.2d 1263 (Ct. Cl. 1962). Review by the Administrator of a Regional Administrator's decision on a request to reconsider permit issuance in an evidentiary hearing is provided for only when the hearing has been denied. See e.g. 40 CFR § 124.75(b); 40 CFR § 124.91(a)(b). 333 U.S.C. § 1371(c).

4 Vol. 1 NPDES Permit File, p. 000213.

Even if petitioners were correct in their argument that a formal EIS is required rather than the substitute employed, an EIS would not solve petitioners' problems. These arise not from the construction, which warrants an EIS or its equivalent, but from the discharge plan, which doesn't.

Further, the only environmental impact here at issue is the water quality standards of the Illinois River, and evidence on this impact will be received during the hearing granted.

Instead, as acknowledged by Oklahoma, the Regional Administrator restated and combined aspects of those three issues to create the second general question on which he granted hearing: i.e., whether the discharge allowed by the permit would violate Oklahoma's water quality standards. In restating the issues however he effectually disallowed hearing on certain subissues which would have been raised by the petitioners' phrasing, including whether procedural requirements of the Clean Water Act had been met by giving notice to Oklahoma of the plan to issue the permit; whether criteria more demanding than Oklahoma's water quality standards should apply in deciding that adequate protection is being provided to the Illinois River; whether use of alternative streams within Arkansas would be a better way of engineering the discharge; 5 and whether requirements of the permit, once in effect, would be enforced.

The Regional Administrator's decision not to allow hearing on the first of these subissues-whether procedural requirements of the Clean Water Act in regard to Oklahoma had been met was correct: the record shows that no real factual dispute exists about that question. The Clean Water Act requires procedurally that notice that a permit is pending be given to a neighbor whose waters would be affected by the permit within 30 days of the permit application, and allows the neighbor to request a hearing within 60 days of notice. 33 U.S.C. § 1341(a)(2).

The record shows that Fayetteville applied for its permit in the present case on June 11, 1985;6 a copy of the proposed permit was supplied by the Region to the Attorney General of Oklahoma on July 5, 1985, and Oklahoma's Assistant Attorney General attended a public hearing on the permit in August, 1985 and read a statement at that time. Response to Comments, Draft NPDES Permit AR0020010, p. 5. No request was made by Oklahoma for a hearing indigenous to its concerns until December 6, 1985, when it requested the hearing now under discussion.7

The Regional Administrator's decision to disallow hearing on the second subissue whether criteria beyond water quality standards must be employed to determine the adequacy of protection for the Illinois River-is also legally sound, when coupled, as it is, with

5 A popular proposal was to pipe it to the Arkansas River. NPDES Permit File, supra. The Attorney General submits that there are other possible scenarios.

6 Vol. 1 NPDES Permit File, p. 000036.

7 The permit was amended after the hearing to reflect some of Oklahoma's comments; it took effect December 10, 1985.

the Region's stipulation that evidence will be accepted at the time of the hearing on the question of what constitutes Oklahoma water quality standards. Response to Petition, p. 7.

Only federally-approved water quality standards are enforced by the Clean Water Act. Whether nondegradation of the Illinois River, in the present case, is included among Oklahoma's federally-approved standards appears to be among the relevant matters factually in dispute in the present record. If evidence shows that nondegradation has been approved as a standard, as petitioners occasionally suggest, then it has become a norm which must to met by the Fayetteville discharge plan. If on the other hand nondegradation is a level of protection higher than the standards, provided only by State statute, then it is applicable only to State dischargers, and may not be imposed by Oklahoma on an Arkansas discharger. Illinois v. Milwaukee, 731 F.2d 403 (7th Cir. 1984) cert. den. 105 S. Ct. 980 (1985).8

The Regional Administrator's decision to deny to Oklahoma and STIR the right to present evidence on alternatives available for directing the Fayetteville discharge into other Arkansas streams (the third subissue) is also a proper decision.

Until the Regional Administrator concludes that the present permit is deficient in regard to protecting Oklahoma water quality standards, there is no purpose in his conducting a complex and timeconsuming review of alternative methods of discharge.

Finally, to the argument put forth by Oklahoma and STIR that assurance of water quality maintenance, even if provided in the permit, is not the same as actual maintenance because of the uncertainty of enforcement, the Region has correctly responded that enforcement of a permit must be assumed at the time of issuance, and, further, that the permit may be enforced when in effect by the petitioners or other citizens if they are dissatisfied with federal enforcement. 33 U.S.C. § 1365.

DECISION

Review by the Administrator of a Regional Administrator's decision to deny an evidentiary hearing is granted only when a petitioner

8 Section 1370 of the Clean Water Act, the "saving clause," does not provide otherwise. The Supreme Court has held that while § 1370 allows any State to enforce a stricter standard than that provided for by the federally-approved plan within its own borders, it doesn't allow the State to impose those limitations on dischargers in another State. Illinois v. Milwaukee, supra, at 413.