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con does not claim that the requirement to monitor and report BOD levels is unreasonable, it is not entitled to a hearing on this permit condition. Great Lakes Chemical Corporation, NPDES Appeal No. 84-8 (September 3, 1985). Accordingly, its request for a hearing on this issue is denied.

(2) Chemical Oxygen Demand Discharge Limitations (Outfall 001): Rubicon contends that the chemical oxygen demand (COD) discharge limitations of the new permit are too stringent and that the limitations of the existing permit should have been retained. The new permit restricts Rubicon to an average daily discharge of 920 pounds and a maximum daily discharge of 1840 pounds for COD, compared to the discharge limits of 1,500 and 3,000 pounds, respectively, in the existing permit. Petition, Para. XLVII (15).21 The Region states that the limitations were derived in accordance with 40 CFR §§ 122.44 and 122.50, and represent the "99% confidence level" of Rubicon's past performance.22 Region's Denial Letter, March 22, 1985.

Rubicon presents three arguments to support its request for a hearing on this permit condition. None of them provides adequate justification for granting the request. First, Rubicon claims that the use of a 99% confidence limit in establishing COD limitations has no basis in the statute or regulations. Petition, Para. XXIX. Since this is an issue of law not of fact, it is not a basis for an evidentiary hearing, 40 CFR § 124.74. Moreover, federal case law supports EPA's use of statistical methodology to establish effluent limitations in NPDES permits. In United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977), for example, the Circuit Court stated that "statistical analysis [is] one appropriate method for computing effluent limi

Rubicon's permit is not subject to these regulations, the Region may reissue it to include the BOD discharge limitations in the guidelines. See p. 555, supra.

21 The draft permit specified limits of 720 and 1440 pounds based on actual discharges during the period from January 1982 to June 1983. EPA "Rationale & Calc.," November 22, 1983. In response to Rubicon's comments, EPA extended the performance period through March 1984, and raised the limits in the final permit by an additional 200 and 400 pounds. Rubicon's hearing request claims that the upward revision is insufficient.

22 A 99% confidence level means the level at which there is an expectation that the discharger will be in compliance 99% of the time. American Petroleum Institute v. EPA, 661 F.2d 340, 347 n.23 (5th Cir. 1981). It is less stringent, for example, than a 95% confidence limit, which is the level that a discharger could only be expected to meet 95% of the time. EPA commonly uses confidence levels in establishing discharge limitations. See Preamble to NPDES regulations, 49 Fed. Reg. 37998 (Sept. 26, 1984).

tations" in NPDES permits, whether established by national guidelines or on a case-by-case basis.23

Second, Rubicon claims that even if EPA may use statistical data as a basis for establishing effluent limitations, it erred in applying a 99% confidence level to Rubicon's data rather than to industrywide data. Rubicon argues that by basing the permit condition on Rubicon's data alone, the Region imposed discharge limitations that reflect "Rubicon's excellent pollution abatement history," instead of BAT, as the statute requires. Request for Evidentiary Hearing, October 26, 1984, pp. 14-16; Comments on Proposed Permit, May 7, 1984, p. 6.

Since the Region does not dispute that it used Rubicon's data as a basis for this effluent limitation, Rubicon has not raised an issue of fact requiring an evidentiary hearing pursuant to 40 CFR § 124.74. Moreover, Rubicon is not entitled to review of this permit condition pursuant to 40 CFR § 124.91, because it has not shown that the Region reached an erroneous conclusion of law, or that it exercised its discretion in a manner warranting review.

The Region has discretion to establish technology-based effluent limits on a case-by-case basis for individual permits. United States Steel Corp. v. Train, supra. In exercising that discretion, it must "take into account the same factors that it considers when promulgating industry-wide effluent limitations pursuant to CWA § 304(b)." In the Matter of AT&T Teletype Corp., NPDES Appeal No. 85–18 (April 23, 1986), p. 7.

The Region maintains that the COD limitations in Rubicon's permit were developed in a lawful manner. It states that they are "technology based" and were determined "in accordance with 40 CFR Part 122.44 and Part 122.50," based on Rubicon's past abatement record. Response to Comments, March 9, 1984, p. 3. It would have been helpful if the Region had articulated in greater detail its rationale for imposing this limitation. However, I am interpreting the Region's explanation to mean that it considered Rubicon's data as reliable evidence of the discharge levels that can be achieved by a well

23 See In the Matter of Shell Chemical Company, Appeal No. 85-14, 85-15 and 85-16 (October 23, 1987), at p.2, in which petitioner argued that the effluent limitations in its permit should reflect the fact that "some noncompliance is built into [its] permit by EPA's own statistical methodology * **" The Final Agency Decision held that there is "no merit" to the claim that "all discharge limits [must be based on] the 100% percentage level of the daily effluent measurements of a well-operated facility." Id. at p.4.

operated facility, and therefore, BAT abatement. Based on that assumption, the Region acted within its discretion in establishing the COD limitations in Rubicon's permit. It was not improper for the Region to consider Rubicon's record of prior pollution abatement in determining BAT, since the company's accomplishments provide evidence of what is technologically achievable. As the legislative history of the statute makes clear, Congress did not intend BAT merely to represent the level of abatement in current routine use, but instead to represent the best attainable abatement level.24 In enacting the Clean Water Act, the House of Representatives stated that:

It will be sufficient for purposes of setting the level
of control under available technology, that there be
one operating facility which demonstrates that the
level can be achieved * * * 25

The Fourth Circuit Court of Appeals reaffirmed that, “in establishing [BAT] * * * standards, the Agency may look to the best performer in the industry." Tanners' Council of America, Inc. v. Train, 540 F.2d 1188 (4th Cir. 1976). Even assuming that Region VI has required Rubicon to adhere to the highest abatement levels of which it is capable, this would not be improper. "[O]ne of the goals of the NPDES program is to insure that pollution-control facilities are operated as efficiently and carefully as possible." United States Steel Corp. v. Train, 536 F.2d 822, 842 (7th Cir. 1977).

Finally, Rubicon asserts that it cannot meet the permit's discharge limitations. This seems to be no more than a restatement of its contention that a permit condition based on a 99% confidence limit guarantees that excursions will occur 1% of the time. In the absence of a showing that the Region did not take into account any statutory factor or factors as to which information was available, it is not entitled to review of this permit condition.26

24 S. Rep. No. 92-414, 92d Cong., 1st Sess. 58 (1971); 118 Cong. Rec. S168973 (Oct. 4, 1972); 118 Cong. Rec. H9117 (Oct. 4, 1972).

25 Congressional Research Service, A Legislative History of the Water Pollution Control Act Amendments of 1972 at 798 (1973).

26 See the following statement in Decision of the General Counsel No. 40, cited with approval in In the Matter of AT&T Teletype Corp., NPDES Appeal No. 8518 (April 23, 1986):

There can be no question but that the factors listed in Section
304(b)(1) are relevant to the imposition of effluent limitations in
individual NPDES permits * * *. But the degree of consideration
given to any such information must depend upon the amount
of information available ***. To the extent that the applicant
(footnote omitted) seeks to require the Regional Administrator

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(3) Total Residual Chlorine Limitation (Outfall 001): Rubicon contends that the average discharge limitation for Total Residual Chlorine (TRC) for Outfall 002 should be deleted because it is unduly restrictive.27 It maintains that levels of 0.5 to 1 milligrams per liter are commonly used in the treatment of drinking water. Petition, Para. XLVII (16). It is the Region's position that "containment will be the significant abatement" for this pollutant. Fact Sheet for Proposed Permit No. LA0000892 (undated). The Region adds that Total Residual Chlorine can be readily reduced to the required level by the addition of sodium sulfite. It maintains that it has "no choice but to regulate TRC as set forth in the permit" based on BAT abatement.28 Rubicon does not dispute whether it can achieve the prescribed discharge levels either through more vigorous containment or by the use of sodium sulfite. Rather, the company argues that sodium sulfite is itself a pollutant and may adversely affect the river.

Rubicon did not oppose the use of sulfite reduction as a control technology during the comment period on the draft permit, but first raised this issue in a request for an evidentiary hearing. 40 CFR § 124.74.29 Accordingly, its request for an hearing on this effluent limitation is denied.30

(4) Total Purgeable Halocarbons and Aromatics (Outfall 001): Rubicon objects to the discharge limitations for Total Purgeable

to consider any particular factor during permit issuance, he is
obligated to present evidence demonstrating the relevance of that
factor to the appropriate limits for this particular facility.

Decisions of the Administrator and of the General Counsel, Volume 2 at pp. 155– 156.

27 The new permit establishes an average discharge limitation of 0.5 milligrams per liter and a maximum discharge limitation of 1 milligram per liter.

Rubicon argued in its Petition that, pursuant to 40 CFR § 125.3, it was not required to achieve BAT for TRC until July 1, 1987. Its argument has become moot by the passage of time.

28 Letter from Regional Administrator to Rubicon, March 22, 1985.

29 Additionally, Rubicon is not entitled to a hearing to consider whether the Region properly exercised its discretion in imposing a discharge limitation on TRC. Although Rubicon may appeal from a permit decision based on "[a]n exercise of discretion or policy which is important * * *,” it has not demonstrated that the imposition of this permit condition is of sufficient importance to warrant review.

30 If Rubicon elects to comply with the effluent limitation on TRC by using sulfite reduction (rather than by containment or by use of an alternative control technology), and if doing so would result in the discharge of a pollutant that is not authorized by the permit, Rubicon may seek a permit modification authorizing the discharge. See 40 CFR § 122.41, 40 CFR Part 122 (Subpart D), and 40 CFR § 124.5.

Halocarbons and Aromatics for Outfall 00131 on the ground that it cannot meet them, and asks EPA to retain the discharge limitations in the existing permit. Petition, Para. XLVII (2). The company claims that EPA based the limitations on chlorinated hydrocarbons in the new permit on its expectation that Rubicon will use steam stripping technology, which it characterizes as "ineffective, astronomically expensive and an irresponsible waste of energy." Request for Evidentiary Hearing (October 26, 1984), p. 17. It claims that it cannot reduce chlorinated hydrocarbons to the required levels by steam stripping, and questions the Region's claim that steam stripping has been successfully used by similar facilities.32 Rubicon further claims that EPA did not take account of the high cost of steam stripping in determining BAT, although the statute requires a cost assessment. 33 U.S.C. § 1314(b)(2)(B). Finally, the company contends that data on steam stripping in EPA's Development Document for Effluent Limitations, Vol. III, February 1983, does not support the effluent limitations that EPA imposes. Petition, Paras. XLVI (7), XLVII (12). It argues that steam stripping is less effective when used in an industrial setting than in a laboratory. The Region responds that cost effective technology is readily available, and that, even though the permit limitations are based on steam stripping, other treatment options are available.33

Material issues of fact exist as to whether the Region took into account the cost of achieving the abatement levels required by the permit; and the efficacy and energy requirements of using steam stripping in an industrial setting. Rubicon raised these issues during the comment period as required by 40 CFR § 124.75. Therefore, Rubicon is entitled to a hearing on the TPH and TPA limitations in the permit.34

31 The new permit provides for a daily average discharge limitation of five pounds and a maximum discharge limitation of 10 pounds for both. The existing permit contains a daily average discharge limitation of 250 pounds and a daily maximum discharge limitation of 550 pounds for chlorinated hydrocarbons (a subcategory of Total Purgeable Halocarbons).

32 On October 14, 1984, Rubicon submitted a request under the Freedom of Information Act for a list of Region VI dischargers who use steam stripping for Total Purgeable Halocarbons and Aromatics, the quantities of effluent treated, and the levels of concentration obtained. EPA responded on November 29, 1984. It furnished the requested list, but stated that it did not have data indicating the levels of concentration attained.

33 EPA "Rationale & Calc.," November 22, 1983.

34 The organic chemicals guidelines impose discharge limitations on specific hydrocarbons, but do not impose limitations on chlorinated hydrocarbons as a group as does Rubicon's permit. Moreover, since the guidelines were promulgated after the issuance of Rubicon's permit, they do not affect the permit or Rubicon's right to

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