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civil penalty proceeding, such as the instant case, the burden of going forward with a prima facie case has been expressly imposed on EPA pursuant to 40 CFR § 22.24. Pursuant to the same regulation, after the complainant presents its case, the burden of going forward shifts to the respondent to present its defenses. The cases cited by EPA do not question the order of proof established by 40 CFR § 22.24 nor do they hold that FIFRA alters the Agency's obligation to establish a prima facie case in a civil penalty proceeding. They hold only that FIFRA allocates to a pesticide registrant the ultimate burden of proving that its product complies with registration requirements. Corson's compliance with registration requirements is not at issue here. Therefore, in the absence of any other authority to support EPA's position, the Agency's appeal must be denied and the administrative complaint dismissed.

Corson's Motion to Dismiss includes a request for attorneys' fees pursuant to "the applicable law, the Federal regulations, and Rule 11 of the Federal Rules of Procedure." Agency regulations provide that an application for attorneys' fees may be filed within 30 days

to the opposing party to rebut that evidence *

The other

'burden of proof' is the burden of persuasion, which is a matter
of substantive law. It never shifts from one party to the other
at any stage of the proceedings. Decision at p. 12.

of the final disposition of a FIFRA civil penalty proceeding. 40 CFR § 17.14. Since Corson's request was filed prematurely it is denied without prejudice. 15

So ordered, 16

15 Rule 11 of the Federal Rules of Civil Procedure is inapplicable. Any right to attorneys' fees in FIFRA civil penalty proceedings is governed by the Equal Access to Justice Act, 5 U.S.C. §504, as amended (EAJA). Agency regulations at 40 CFR Part 17 establish procedures for submitting and processing claims under the Act. The regulations contemplate that claims for attorneys' fees shall be filed with the hearing officer, rather than the Chief Judicial Officer. In the Matter of Robert Ross & Sons, Inc., TSCA Appeal No. 82-4 (January 28, 1985).

The EAJA initially applied only to adjudications pending between October 1, 1981, and September 30, 1984. Amendments to the EAJA on August 5, 1985, extended its coverage to cases pending on or commenced after that date. It should be noted that EPA's regulations have not been amended to reflect the August 5, 1985, amendments to the EAJA. They state that "[t]he Act applies to an adversary adjudication pending before EPA at any time between October 1, 1981 and September 30, 1984.” 40 CFR § 17.4. The Agency's failure to update this regulatory provision appears to be inadvertent and therefore should not affect the applicability of 40 CFR Part 17 to EAJA claims. The regulations expressly apply "to adversary adjudications required by statute to be conducted by EPA under 5 U.S.C. 554." 40 CFR § 17.3.

16 Since the dismissal order is affirmed, Corson's motion to strike the testimony of witnesses Harder and Gavin need not be addressed.

IN THE MATTER OF SHEE ATIKA, INC.

NPDES APPEAL NO. 86-14

ORDER GRANTING REVIEW IN PART AND DENYING
REVIEW IN PART

Decided January 21, 1988

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Ronald L. McCallum, Judicial Officer:

EPA Region X and Shee Atika, individually, and Sierra Club and the City of Angoon (Sierra-Angoon), jointly, have petitioned the Administrator for review of an initial decision by an Administrative Law Judge (ALJ) regarding an NPDES permit issued to Shee Atika by Region X for the discharge of pollutants into the waters of the United States from a proposed log transfer facility located in southeast Alaska. The three petitions for review together raise four issues: (1) whether EPA has authority to regulate the log transfer facility under the NPDES program, (2) whether EPA has authority to require diking of an uplands area where Shee Atika will dispose of solid waste and debris, (3) whether EPA has regulatory authority over the log sorting and storage area, and (4) whether a permit condition requiring a log entry speed of 3 feet per second is reasonable. For the reasons set forth below, review is granted in part and denied in part.

DISCUSSION

A petition for review is not normally granted unless the initial decision is clearly erroneous or involves an exercise of discretion or policy that is important and which should be reviewed. KerrMcGee Nuclear Corporation (Church Rock Facility), NPDES Appeal No. 80-3, May 15, 1980; Boston Edison Company, NPDES Appeal No. 78-7, August 28, 1978. The regulations do not confer an automatic right to have the initial decision reviewed on appeal. See 40

CFR § 124.91.1 The burden of demonstrating that review should be granted is therefore on the petitioner.

Upon consideration of the petitions for review and pursuant to 40 CFR § 124.91(c)(1), review of issues (1) and (2) is denied. Review is granted on issues (3) and (4) and the parties will brief these issues as set forth below.

ISSUE (1): LOG TRANSFER FACILITY

In its petition for review, Shee Atika argues that because the discharge from its log transfer facility (LTF) will result in only de minimus pollution, the ALJ erred in finding that it must obtain an NPDES permit to operate the facility. The ALJ rejected the de minimus argument when it was raised below, and Shee Atika makes no showing whatsoever in its petition for review that the ALJ's decision is erroneous or involves an important policy or exercise of discretion that warrants review. Thus, Shee Atika fails to meet the requirements for review under § 124.91.

Furthermore, I agree with the ALJ's decision that Shee Atika's LTF is a point source discharging pollutants into the waters of the United States and therefore subject to the NPDES program. Shee Atika will operate the LTF to move harvested logs from land to the waters of Cube Cove. This operation will result in the discharge of materials, including logs, bark, wood debris, oil, grease, and leachates, that are "pollutants." See 33 U.S.C. § 1362(6); United States v. Kennebec Log Driving Co., 399 F. Supp. 754 (D. Me. 1975). Discharge of pollutants from a “discernible, confined and discrete conveyance related to *** log sorting, or log storage facilities" is a silviculture point source. 40 CFR § 122.27(b)(1). In fact, Shee Atika does not dispute the conclusion that its LTF is a point source; rather it argues that EPA lacks jurisdiction because the discharge will be, at worst, de minimus. This argument is without merit. In determining EPA's NPDES jurisdiction over a discharge, the impact of a discharge on the receiving waters is not relevant. See, e.g., Crown Simpson Pulp Co. v. Costle, 642 F.2d 323 (9th Cir. 1981) (granting a variance from NPDES regulation based on receiving water quality is inconsistent with the Clean Water Act). As the ALJ pointed out, the Clean Water Act of 1972 (Act) shifted the focus of water pollution control from the quality of the receiving waters to technological control of effluent. See 33 U.S.C. §§ 1251(a)(1), 1311(b).

1 All references to the Code of Federal Regulations (CFR) are to the 1986 edition.

ISSUE (2): UPLANDS DISPOSAL AREA

In its petition for review, Region X argues that the ALJ erred in holding that EPA did not have authority to require diking of the uplands disposal area. According to the Region, section 402 of the Act gives the Administrator authority to impose such a condition. Region X, however, has not made a convincing case in favor of review.

Under the authority of section 402, the Administrator may impose best management practices that he determines are necessary to carry out the provisions of the Act, but there must be a "rational connection" between the permit condition and either the achievement of effluent limitations in the permit or the fulfillment of the purposes of the Act. See NRDC v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) (Section 402(a)(1) gives EPA considerable flexibility in framing a permit to achieve a desired reduction in pollution discharges); Decision of the General Counsel No. 33 (October 21, 1975) (EPA has authority to include sludge-handling requirements in permit that can be shown to influence the attainment of limitations); Decision of the General Counsel No. 19 (June 27, 1975) (EPA could include condition in permit requiring proper operator qualifications as there is a reasonable relationship between this condition and the plant's attainment of effluent limitations). The ALJ concluded that the Region failed to establish a rational connection between the requirement for the uplands area to be diked and reduction in the discharge of pollutants.

In its petition, the Region fails to show that the ALJ's determination is erroneous or involves an important policy or exercise of discretion that warrants review, and my review of the record before me confirms the ALJ's conclusion. Accordingly, review of this issue is denied.

ISSUE (3): LOG SORTING AND STORAGE YARD

Region X and Sierra-Angoon argue that the ALJ erred in deciding that EPA lacks authority to regulate the discharge of pollutants from Shee Atika's proposed log sortyard. The sortyard will be a 5-6 acre area covered with crushed stone and sloping towards Chatam Strait. In this area the logs will be sorted and stored prior to transfer to the water. A drainage ditch sloping towards the Strait will be constructed across the rear of the sortyard so that runoff will be directed through a 1" screen and into a settling pond before entering the Strait. Shee Atika's sortyard will be a dry-deck facility, rather than a wet-deck facility where logs are sprinkled with water for preservation.

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