acceptable or the use proposed is reasonable. Kaiser has not made that showing. While some of Kaiser's objections-e.g., its objection to the Region's choice of daphnia as the test species, and to laboratory water as the diluent-would be troublesome and potentially unreasonable were the testing to be used to determine compliance with the permit or to set permit limits,5 the Region has stipulated that testing will not be used in this case for these purposes. It will serve instead as a relatively rough and inexpensive screening device to determine whether acute toxicity is characteristic of the effluent after elements in the discharge have combined and acted upon one another, and have been treated by BAT technology. Should this testing show that the treated effluent is unacceptably toxic, the Region has stipulated it will employ other, more precise processes to set additional permit limits. Setting new permit limits would of course require notice, opportunity for comment, and the usual additional safeguards. Kaiser has not shown that this is an unreasonable course to follow or that its substantive objections to the reliability of the option chosen from the method promulgated are relevant in these circumstances. The Regional Administrator therefore did not err when he declined to conduct a hearing on them. Kaiser's fourth objection-that the biomonitoring required in this permit conflicts with national policy-is not accurate. Use of biological techniques to assess discharges under the present circumstances is recommended by the national policy.6 Finally, the factual question raised by Kaiser of whether monitoring for toxics is warranted at a time when the Works are inoperative is not genuinely in dispute. The record supports the conclusion that toxics could be reasonably expected to be discharged from the outfalls, despite the closing of the Works, originating in storm water runoff from process areas which previously discharged arsenic, lead, nickel, thallium, and phenols. Toxic discharges could reasonably be expected also from leachate from a hazardous waste landfill, being closed on the grounds at the time that the permit was issued. 5 Kaiser correctly states that daphnia are not currently indigenous to the lower reaches of the Mississippi, and that the current chemistry of the lower Mississippi is not equivalent to that of laboratory water. Both the species and the water are however readily available and thus constitute relatively inexpensive rough screening materials. 649 Fed. Reg. 9017 (1984). DECISION No clear error having been shown by the Petitioner, or abuse of discretion, review of the Regional Administrator's decision is denied. So ordered. IN THE MATTER OF NORTH COUNTY RESOURCE RECOVERY ASSOCIATES PSD Appeal No. 85-2 ORDER DENYING REVIEW Decided September 4, 1986 Before the Administrator, U.S. Environmental Protection Agency Opinion by A. James Barnes, Acting Administrator: In petitions filed pursuant to 40 CFR § 124.19 (1985), Donald J. Wakefield and John R. Leach, Jr., jointly, and Stephen Isaac and Richard D. Sauerbeber, individually, requested review of a Prevention of Significant Deterioration (PSD) permit determination that will authorize North County Resource Recovery Associates (NCRR) to construct a 33 megawatt, 1000 ton per day resource recovery facility in San Marcos, California. The permit determination was made by the U.S. Environmental Protection Agency, Region IX, San Francisco, California. On June 3, 1986, in response to the petitions, I issued an order remanding the permit to Region IX for reconsideration of the basis on which it had made its Best Available Control Technology (BACT) determinations for the permit. Specifically, Region IX was to take into account the environmental effects, if any, of pollutants that are not currently regulated under the Act, if such pollutants are released (or removed) through application of the control system designated as BACT. On August 15, 1986, Region IX wrote a response to the remand order that reaffirmed the prior BACT determinations. Region IX found that the emission controls reflected in its original BACT determinations were such that no other controls on regulated pollutants would be more effective in reducing emissions of unregulated pollutants. In other words, alternative controls for the regulated pollutants would not offer any better control for unregulated pollutants than the controls proposed by NCRR. Accordingly, pursuant to the terms of the remand order, this matter is now ripe for a decision on whether NCRR's permit should be reviewed on appeal or whether Region IX's decision to issue the permit should be allowed to become final. Petitions for review of RCRA permits are not 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) (1985). The preamble to the regulations containing this standard of review 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 person requesting review. In this case, the parties requesting review have not, in my opinion, raised any matters that warrant review under the applicable standard of review. An examination of the record on review discloses that the Regional Administrator has given thorough and careful consideration. to all of the issues raised by the persons requesting review and the permit determination is neither clearly erroneous nor involves an exercise of discretion or policy which warrants discretionary review. Accordingly, the petitions for review are denied. In accordance with 40 CFR § 124.19(f) (1) and (2), Region IX shall issue a final permit decision consistent with this order and publish notice of that decision in the Federal Register. The decision shall be considered final Agency action for purposes of judicial review. So ordered. IN THE MATTER OF TERREBONNE PARISH COUNCIL NPDES Appeal No. 86-6 ORDER DENYING REVIEW Decided September 9, 1986 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: Upon consideration of a petition for review filed by Terrebonne Parish Council, dated March 20, 1986, and pursuant to 40 CFR § 124.91(c)(1) (1984), it is hereby determined that review of the denial of Terrebonne's request for an evidentiary hearing is declined. 1 So ordered.2 1As has been decided on numerous occasions (e.g., Boston Edison Company, NPDES Appeal No. 78-7, August 28, 1978; IT Corporation (Ascension Parish, Louisiana), NPDES Appeal No. 83-2, July 21, 1983), a petition for review is not normally accepted unless the decision is clearly erroneous or involves an exercise of discretion or policy which is important and which should be reviewed as a discretionary matter. The regulations do not confer an automatic right to have a decision reviewed on appeal, 40 CFR § 124.91 (1984). 2 The Chief Judicial Officer, as the Administrator's delegatee, has the authority to issue final orders either granting or denying a petition for review of the denial of a request for an evidentiary hearing, 40 CFR § 124.72 (1985). In its petition Terrebonne requested, in the alternative, that the Administrator stay the permit's effectiveness, to provide Terrebonne a reasonable amount of time to construct the facilities and/or improvements necessary to reach the tertiary treatment levels required by the permit. That request is denied. The only provision in the Clean Water Act that would authorize such a stay under those circumstances is CWA §301(i)(1), which allows a permittee to request an extension of a permit's effective date "[w]here construction is required in order for a planned or existing publicly owned treatment works to achieve" the effluent limitations (including those imposed by State law, such as tertiary treatment limitations) required in the permit. Such request must be made within 180 days after December 27, 1977. Even if petitioner's request for a stay of permit requirements could be construed as a §301(i)(1) request it was not made within the time limit required by that section. I note in passing that the effectiveness of the permit's contested provisions (in this case the tertiary treatment standards) were automatically stayed while |