tions are not technologically achievable. Petitioner further argues that since the permit's limitations are more stringent than is necessary to satisfy applicable technology standards under § 301 of the Act, EPA is first required by the terms of § 302 of the Act, 33 USCA § 1312, to hold a hearing to determine if the limitations should be included in the permit. Petitioner claims it was denied this right to a hearing.

The Region responded by pointing out that the limitations were put in the permit pursuant to §301(b)(1)(C) of the Act, 33 USCA § 1311(b)(1)(C), to satisfy Arizona's more stringent water quality standards, and the Region therefore would have no discretion to alter them even if it were to agree with Petitioner that the limitations are not technologically achievable. The Region also asserts that the § 302 hearing provisions do not apply to the instant permit because § 302, by its terms, only applies when EPA determines that technology-based effluent limitations imposed by §301(b)(2), 33 USCA § 1311(b)(2), would interfere with certain water quality goals, such as protection of a balanced population of shellfish, fish, and wildlife.

I agree with the Region. The language of § 301(b)(1)(C) is unequivocal in requiring EPA to include limitations in the permit that implement more stringent state water quality standards. See, e.g., Roosevelt Campobello Int'l Park Comm'n v. EPA, 685 F.2d 1041, 1056 (1st Cir. 1982). EPA has steadfastly construed the Act as barring it from relaxing or modifying such limitations in a way that would undermine strict compliance with a state's water quality standards. See, e.g., Ina Road Water Pollution Control Facility, Pima County, Arizona, NPDES Appeal No. 84-12 (CJO, Nov. 6, 1985) (under certain circumstances, EPA can even impose stricter limitations than those the State believes are necessary to comply with state law) Moreover, the Petitioner is not entitled to a hearing under § 302 before EPA can include the limitations in the permit, for the limitations were not established to implement a technology-based effluent standard required by §301(b)(2)-as § 302 expressly contemplates 1but were instead established to meet a more stringent state water quality standard pursuant to §301(b)(1)(C). This latter basis represents an independent, non-technology-based reason for establishing

1 Section 302 calls for the establishment of alternative, water-quality-based effluent limitations for a discharger whenever "the application of effluent limitations required under section [§ 301(b)(2)] ** would interfere with the attainment or maintenance of that water quality * which shall assure * ** the protection and propagation of a balanced population of shellfish, fish and wildlife, and allow recreational activities in and on the water

* "

33 USCA § 1312(a).

the effluent limitations in Petitioner's permit; it is not tied to § 302.2 Therefore, the hearing requirements of § 302 have no applicability to this permit.

Accordingly, for the reasons stated here and in the Region's response to the petition, which also incorporates the Regional Administrator's decision denying Petitioner's request for a hearing, the petition for review is denied.

So ordered.3

2To my knowledge § 302 has never been utilized. Its practical value is limited since its basic purpose ensuring compliance with the water quality goals of the Act, principally the "fishable, swimmable" goals-is most readily facilitated through application of state water quality standards, either directly by the states or indirectly by EPA pursuant to §301(b)(1)(C), as was done in this case. The chief value of § 302 lies in its potential for EPA to "adopt its own effluent limitations for any body of water as to which a state fails or refuses to adopt water quality standards sufficient to maintain fishing and swimming uses." Environmental Law Handbook at 253 (Govt. Inst's. Inc. 9th Ed. 1987); see also Federal Environmental Law at 724-26 (West Pub. Co. 1974). As stated by EPA's General Counsel, "sections 302 and 301(b)(1)(C) can easily be reconciled if section 302 is recognized as simply an alternative way to improve water quality, applicable to those situations where technology-based standards are inadequate and no water quality standards are in place calling for 'fishable, swimmable' water." Memorandum from Robert M. Perry, General Counsel, to John E. Daniel, Chief of Staff, entitled "Interpretation of Section 301(b)(1)(C) of the Clean Water Act" (Feb. 23, 1982).

3 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.

IN THE MATTER OF STAR-KIST SAMOA, INC.
AND SAMOA PACKING COMPANY

NPDES Appeal No. 87-8

ORDER DENYING REVIEW

Decided September 26, 1989

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Ronald L. McCallum, Chief Judicial Officer:

In separate petitions filed pursuant to 40 CFR § 124.91, StarKist Samoa, Inc. and Samoa Packing Company (collectively "petitioners") requested the Administrator to review a decision by the Regional Administrator (RA) of EPA Region IX to deny in part petitioners requests for an evidentiary hearing on several issues related to their NPDES permits. Region IX filed a response in opposition to the petitions.2 Both petitioners filed replies to the Region's response and the Region filed a sur-reply.3

Under the rules governing this proceeding, there is no appeal as of right from the RA's decision. Ordinarily a petition for review is not granted unless the RA's decision is clearly erroneous or involves an exercise of discretion or policy that is important, and, therefore, should be reviewed by the Administrator. Boston Edison Company, NPDES Appeal No. 78-7 (Adm'r, Aug. 28, 1978; E.I. du Pont de Nemours & Company, NPDES Appeal No. 78–2 (JO, March 16, 1978); 44 Fed. Reg. 32,887 (Preamble to 40 CFR Part 124, June 7, 1979).

1See Star-Kist Samoa's "Petition for Review and Memorandum in Support" (June 11, 1987); Samoa Packing's "Petition for Review" (June 11, 1987).

2 See "Region 9's Memorandum Opposing Permittees' Petitions for Review" (July 31, 1987).

3 See "Samoa Packing Company Notice of Appeal and Petition for Review Reply of Samoa Packing Company" (August 25, 1987); "Star-Kist Samoa, Inc.'s Response to Region 9's Memorandum Opposing Permittees' Petitions for Review" (August 21, 1987); "Region 9's Sur-Reply Memorandum Opposing Permittees' Petitions for Review" (September 9, 1987).

The regulations do not confer an automatic right of review; rather the petitioner has the burden of demonstrating that review should be granted. See 40 CFR § 124.91(a).

Petitioners allege, as grounds for granting review, that (1) the American Samoa Government's (ASG's) mixing zone regulations must be modified to allow petitioners to obtain a mixing zone for nitrogen and phosphorous; (2) ASG failed to make proper wasteload allocations and to hold a total maximum daily load hearing; (3) Region IX should not have calculated the interim limits based on an assumption of barging without at least two years of water quality monitoring to support these limits; (4) there is inadequate data to support interim limits on nitrogen and phosphorous; (5) the Region's decision to measure compliance using single point measurements is arbitrary and not in accordance with the ASG's water quality standards (WQS); (6) the WQS were based upon limited sample data and thus lacked statistical validity; (7) the Region is selectively enforcing the WQS; (8) EPA failed to consider public input at the WQS hearing, correspondence relating to WQS, and the consultant's report; (9) the stormwater monitoring requirements of the permit are not reasonable because the outfall catches water from lands not owned by StarKist; (10) Samoa Packing's permit should be revised to state that if a mixing zone were to be granted by the ASG, the permit would automatically allow it to measure its discharge at the edge of the mixing zone; (11) Samoa Packing has an absolute right to scale down or cease its operations in lieu of providing treatment to its effluent; (12) Samoa Packing should be required only to fund the current monitoring program, not to actually perform it; (13) the changed economic circumstances of American Samoa require that the WQS be interpreted in a manner consistent with the ASG's economic policy decision to promote tuna canneries as a key to future economic growth; (14) the interim permit limitations for nitrogen and phosphorus should be stayed until 15 months after all appeals have been decided. I reject all of these arguments for the reasons stated in Region IX's response and sur-reply. Specifically, issues 3, 4, 6, and 11 were not raised during the public comment period as required

4 In her decision on the evidentiary hearing requests, the RA stayed the compliance dates contained in the Schedule of Compliance, pursuant to 40 CFR § 124.16(a)(1). She determined, however, that all other conditions in the permit are uncontested and severable and thus declined to stay the remaining conditions. See 40 CFR § 124.60(c)(1). Petitioners have not demonstrated that the RA's denial of a stay for the interim limitations for nitrogen and phosphorous was erroneous. Thus, the interim limitations shall become effective immediately in accordance with 40 CFR § 124.60(c) (5).

by EPA regulations. See 40 CFR §§ 124.11, 124.13, 124.76.5 As to the remaining issues, petitioners have not met their burden of showing that the RA's decision was clearly erroneous (factually or legally) or othervise warrants review by the Administrator. Thus, the petitions for review are denied.

So ordered.

5 Even if petitioners had raised these issues in a timely manner, petitioners have not shown that they warrant review under 40 CFR § 124.91.