fore, the Region correctly denied IMC's hearing request and IMC is barred from appealing the Region's permit determination to the Administrator. It is not necessary to consider IMC's second claim that the Region erred in concluding IMC's hearing request raised only legal issues. Additionally, I note that even if IMC had challenged the permit terms in a timely manner, IMC's argument that the Region lacks the authority to include the contested provisions in the permits is without merit. The Clean Water Act authorizes EPA to put such provisions in a permit. Regarding the discharge limitations for specific conductance, ammonia (unionized), and dissolved oxygen, contrary to IMC's argument, the Region can employ the state water quality standards for these parameters as effluent limitations. Region IV, as the permit-issuing authority, has the responsibility under sections 301 and 402 of the Act, 33 U.S.C. §§ 1311 and 1342, to include state limitations in permits if they are more stringent than federal limitations, including limitations necessary to meet state water quality standards. Often, state water quality standards must be translated into effluent limitations so that they can be applied to a particular discharger in a meaningful way. See, e.g., Champion International Co. v. U.S. EPA, 648 F. Supp. 1390 (W.D.N.C. 1986); Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir. 1984). In other instances the standards can be incorporated directly into the permit as the effluent limitations. See U.S. Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977) (thermal limitations taken from state water quality standards). Here, the state water quality standards for the three parameters are written as numerical limits "which apply to all surface waters except within zones of mixing." Florida Administrative Code 17-3.061 and 17-3.121. Since the standards are conveniently stated in numerical limits and IMC does not have an approved mixing zone, the Region could incorporate them into the permits as effluent limitations.3 3 IMC argues that the state water quality standards cannot apply at the point of discharge because Florida has a regulatory procedure for establishing water-quality based limitations, yet Florida has not adopted any limitations for the parameters at issue. IMC, however, has not provided any detailed basis for this argument or otherwise developed its position. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) (comments must be sufficiently articulated so that the agency can understand the nature and significance of the position being set forth). Given this lack of development and the fact that IMC is raising the matter for the first time, I will not entertain the issue at this late stage in the proceedings. Section 402(a)(1) of the Act, 33 U.S.C. § 1342, also authorizes inclusion of "such conditions as the Administrator determines are necessary to carry out the provisions of [this Act]." Referring to section 402(a), the court in Natural Resources Defense Council v. Thomas, 822 F.2d 104 (D.C. Cir. 1987) stated: The breadth of this statutory grant of authority is The Region's decision to include a BMP requirement and a reopener clause in the subject permits can be justified under this statutory authority. See also, e.g., Natural Resources Defense Council v. Costle, 586 F.2d 1369 (D.C. Cir. 1977) (Section 402 gives EPA considerable flexibility in framing the permit); Decision of the General Counsel, No. 72 (October 20, 1978) (EPA has authority under section 402(a) to include BMP requirement in permit). IMC argues that the reopener clause is inconsistent with NPDES regulations on modification or revocation and reissuance of permits. I disagree. EPA limited its discretion by regulation so that NPDES permits can only be modified or revoked and reissued for the causes listed at 40 CFR §§ 122.62 and 122.63; the reopener clause, with the exception of paragraph 1.a., conforms to at least one (and possibly more) of the causes listed therein, e.g., it clearly falls within the authority of § 122.62(a)(2) (modification of permit based on new information). Monitoring data and other information required under the permits are a potential source of "new information." Thus, if such information shows that IMC is discharging a substance for which a limitation must be established under state water quality standards, or for which an effluent limitation issued under sections 301(b)(2) (C) and (D), 304(b)(2), and 307(a)(2) exists, the reopener clause quite properly allows EPA to modify IMC's permits to incorporate such 4In its petition IMC points out that 40 CFR Part 125 Subpart K, which delineates the standards for BMPs, has never become effective and argues that EPA cannot impose BMP conditions in absence of "duly promulgated regulations." IMC is mistaken. Section 402 of the Act authorizes EPA, "prior to the taking of necessary implementing actions," to include in a permit all such conditions EPA determines are necessary to carry out the provisions of the Act. Natural Resources Defense Council, Inc. v. Costle, 586 F.2d 1369 (D.C. Cir. 1977). limitations. See also 49 Fed. Reg. 9107 (March 9, 1984) (Policy for Development of Water-Quality Based Permit Limitations for Toxic Pollutants). As noted above, paragraph 1.a. of the reopener clause does not fit within the acceptable causes for modification and is of questionable authority. It provides that EPA can modify or revoke and reissue the permit to comply with any effluent limitations issued under sections 301(b)(2) (C) and (D), 304(b)(2), and 307(b)(2) that "contain different conditions or [are] otherwise more stringent than any effluent limitations in the permit." This violates § 122.62(a)(3), which allows modification to incorporate revisions to standards or regulations on which the permit is based only at the permittee's request.5 IMC, however, did not contest the legitimacy of the reopener clause in a timely manner and the sua sponte review period has passed, so review of this issue is denied.6 IMC has not shown that the Region's decision denying its request for an evidentiary hearing for failure to raise the issues during the comment period is clearly erroneous or involves a discretionary matter that I should review. Accordingly, the petition for review is denied. So ordered. 5 Paragraph 1.a. was evidently drawn from § 122.44(c)(1) which allows EPA to modify a permit to incorporate new or revised BAT limitations for toxic pollutants; however, that section does not provide the necessary authority here because it only applies to dischargers within a primary industry category, and not to IMC's phosphate mining facilities. 6 Any concerns about paragraph 1.a. may be irrelevant because the permits at issue do not appear to be based on effluent limitations issued under sections 301(b)(2) (C) and (D), 304(b)(2), and 307(a)(2). Hence, the language allowing modification to incorporate revisions of such limitations would have no effect. IN THE MATTER OF F&K PLATING COMPANY RCRA (3008) Appeal No. 86-1A FINAL DECISION Decided October 8, 1987 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: This case is before me on the parties' appeals from an April 14, 1986 Initial Decision of Administrative Law Judge Spencer T. Nissen holding that F&K Plating Company ("F&K") violated the Resource Conservation and Recovery Act of 1976 ("RCRA"), as amended, and related regulations. The violations occurred at F&K's electroplating facility at 4420 N. Sewell Road, Oklahoma City, Oklahoma. They consist of failing to file a timely Notification of Hazardous Waste Activity; failing to obtain a permit or achieve interim status; using an unauthorized transporter to ship hazardous waste off-site; failing to maintain proper manifests; failing to file quarterly reports; and failing to comply with numerous interim status standards. The Initial Decision is largely premised on a finding that certain samples from a "dead tank" and an unlined surface impoundment at the facility exceeded the EP toxicity threshold for chromium. In its complaint, EPA Region VI proposed a civil penalty of $50,000, and it presented evidence at trial that this penalty is appropriate under the Agency's Final RCRA Civil Penalty Policy (May 8, 1984) ("Penalty Policy").1 The Presiding Officer reduced the proposed pen 'Under the Penalty Policy, a gravity-based penalty is determined by reference to a matrix, which provides various penalty ranges depending on whether the violation's potential for harm and extent of deviation are major, moderate, or minor. Penalty Policy at 5-10. This gravity-based penalty may then be adjusted to account for special factors such as good faith, history of noncompliance, and inability to pay. Id. at 11-21. I frequently rely on the Penalty Policy in assessing penalties under RCRA because it facilitates a fair and reasonable exercise of my discretion. I am not, however, Continued alty to $43,5002 in light of F&K's good faith regarding the transporter violation and its partial compliance with the manifest requirements. Initial Decision at 30. He then stated that evidence of F&K's inability to pay warranted a further reduction of the penalty by 25 percent. Id. at 31. To ensure that F&K is financially able to undertake proper remedial action, however, he ordered the penalty cancelled altogether if F&K closes its surface impoundment and adheres to the compliance order attached to the Initial Decision. Id. at 31-32. By motion dated May 2, 1986, F&K requested a reopening of the hearing to receive additional evidence suggesting that its waste is not hazardous. The Presiding Officer denied the motion, stating that it was simply an attack on the correctness of the Initial Decision, and failed to meet the criteria for reopening a hearing specified in 40 CFR §22.28. See Opinion and Order Denying Motion to Reopen Hearing (June 13, 1986) (“Opinion and Order”). F&K's principal argument on appeal is that the waste in its surface impoundment is not hazardous. It also contends that any penalty should be minimal due to its small size, good faith, and other mitigating circumstances. The Region argues that the ALJ exceeded his authority by reducing and then conditionally cancelling the penalty due to F&K's inability to pay. Based on my review of the record and the parties' numerous submissions on appeal,3 I affirm and adopt Judge Nissen's findings bound to adhere to the Penalty Policy's guidelines. See In re A.Y. McDonald Industries, Inc., RCRA Appeal No. 86–2, at 19 (CJO, July 23, 1987). 2 Although the Initial Decision (p. 31) refers to a "$42,500 penalty," the Region correctly points out on appeal that this figure reflects a mathematical error. The correct penalty amount assessed by the Presiding Officer prior to his consideration of F&K's ability to pay is $43,500 ($50,000 – $4000 – $2500-$43,500). 3 Due to the self-confessed inexperience of F&K's counsel with EPA procedures, all of its submissions have been considered on appeal even though several were unaccompanied by requests for leave to file as required by 40 CFR § 22.30(a)(2). The Region's August 22, 1986 motion to close the briefing period is denied as moot. F&K's request for attorney's fees in its opening brief fails to comply with 40 CFR Part 17, is baseless, and is therefore denied. Finally, I grant the Region's request to strike from the record the assertion in F&K's opening brief (p. 5) that an EPA witness retracted certain testimony “after he slept with his lawyer." This disgraceful remark goes beyond the bounds of even zealous advocacy. To his credit, F&K's counsel later apologized for the remark, recognizing it as "excessive." |