In addition to the challenged toxicity testing requirements, the final permit contains conditions relating to ocean discharge criteria. On September 14, 1987, Miami-Dade requested an evidentiary hearing on issues related to both the ocean discharge criteria and the challenged testing requirements. On December 1, 1988, the Regional Administrator granted an evidentiary hearing on the issues related to the ocean discharge criteria but denied a hearing on the issues related to toxicity testing. Miami-Dade appealed the denial of the toxicity testing issues to the Agency's Chief Judicial Officer. On May 10, 1989, Miami-Dade sent to the Region a request for permit modification "based on new information and new standards that were not available at the time of permit issuance." The Region then asked the Chief Judicial Officer for a stay of appeal to allow the Region to consider the modification request. On May 17, 1989, the Chief Judicial Officer granted the Region's motion for a stay of appeal. Almost two years later, on May 9, 1991, the Chief Judicial Officer determined that the stay had not resulted in any final resolution and had not served as a catalyst to bring about such a resolution. The Chief Judicial Officer, therefore, remanded the appeal to the Region, directing the Region to reconsider the matters that had been appealed and dismissing the appeal without prejudice. On May 28, 1991, the Regional Administrator issued a decision denying the hearing request with respect to the toxicity testing requirements and denying as moot the previously granted hearing on issues related to ocean discharge criteria. The Regional Administrator explained that the toxicity testing issues are legal issues because the contested requirements are based on Florida water quality standards and are required to be incorporated into the permit under §301(b)(1)(C) of the Clean Water Act. This appeal followed. II. DISCUSSION Under the rules governing this proceeding, there is no appeal as of right from the Regional Administrator's decision. Ordinarily a petition for review is not granted unless the Regional Administrator's decision is clearly erroneous or involves an exercise of discretion or policy that is important, and should therefore be reviewed by the Administrator. See 40 CFR § 124.91(a) (1990). The petitioner has the burden of demonstrating that review should be granted. Florida's toxicity standard for ocean discharges reads as follows: For open ocean discharges, the effluent when diluted Rule 17-4.244(3)(c), F.A.C. In order to ensure compliance with the above-quoted toxicity standard, the Region included the following permit provisions: Part I, Item 8 The effluent collected at serial Outfall 001, when Part IV Biomonitoring Program 1. The permittee shall conduct 48-hour static renewal toxicity tests using the Mysid shrimp (Mysidopsis bahia) and the inland silverside (Menidia beryllina) or any other species approved by EPA. Tests shall be conducted once every two months for a period of one year following the initiation of the tests and once every six months thereafter for the duration of the permit using samples of post-chlorinated effluent. Four separate grab samples shall be collected at evenly-spaced (6 hr.) intervals over a 24-hour period and used in four separate tests in order to catch any peaks of toxicity and to account for daily variations in effluent quality. Concurrent total residual chlorine measurements on post-chlorinated effluent shall be conducted. * * * 2. If lethality (less than 50% survival of test orga- For the purposes of this appeal, a key aspect of Florida's toxicity standard is that the effluent is to be tested at precisely 30% full strength. The toxicity testing required by the standard, therefore, does not reflect the actual dilution that will take place once the effluent mixes with the receiving waters. Hence, when determining whether a violation of the standard has occurred, it is not necessary to consider the actual impact of the effluent on the receiving waters or the dilution of the effluent that will occur once the effluent mixes with the water. A. Whether Any Permit Limitation is Necessary In its petition, Miami-Dade argues that the Region is not required to include any permit limitation to ensure compliance with Florida's toxicity standard at Rule 17-4.244(3)(c), F.A.C., because that standard is not a water quality standard and because Miami-Dade's effluent has no reasonable potential for causing or contributing to a violation of the standard. These two arguments are addressed below. Legal Status of Florida's Standard: Under Clean Water Act Section 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C), the Region is required to include in the permit "any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations ***." The Region believes that, under Section 301(b)(1)(C), it is required to include the challenged permit limitations because those limitations are necessary to ensure compliance with Florida's toxicity standard for ocean discharges, Rule 17– 4.244(3)(c), F.A.C.3 Miami-Dade, on the other hand, contends that 3 In its reply brief, Miami-Dade notes in passing that "the pertinent Florida water quality standard" is Florida's narrative whole effluent toxicity standard, which prohibits discharges that are "acutely toxic." Rule 17-302.500, F.A.C. (formerly Rule 17-3.051(1)(d), F.A.C.). Miami-Dade then states that Rule 17-4.244(3)(c), F.A.C. is the test methodology used by the State of Florida to monitor for compliance with the water quality standard in Rule 17-3.051(1), F.A.C. Miami-Dade's Reply Brief, at 2. Miami-Dade's point in mentioning Rule 17-302.500, F.A.C. is not entirely clear. Perhaps it is that Rule 17-4.244(3)(c), F.A.C. is associated with a water quality standard (i.e. Rule 17-302.500, F.A.C.) but is not in itself a water quality standard and therefore does not trigger the need for a permit limitation under CWA § 301(b)(1)(C). Florida's standard is not a water quality standard because it is not designed to protect a designated use and that, accordingly, the Region is not required under Section 301(b)(1)(C) to include a permit limitation to ensure compliance with the standard.4 Miami-Dade's contention that the toxicity standard is not a water quality standard is certainly subject to debate. However, for our purposes, whether Rule 17-4.244(3)(c) technically meets the definition of "water quality standard" at 40 CFR § 131.3(i) is unimportant because even if Rule 17-4.244(3)(c), F.A.C. is not a water quality standard, the Region still has an obligation under Section 301(b)(1)(C) to include a permit limitation to ensure compliance with the standard (if there is reason to believe that Miami-Dade's effluent might violate the standard). Miami-Dade apparently assumes that Section 301(b)(1)(C) only applies to State water quality standards, treatment standards, or schedules of compliance. We read Section 301(b)(1)(C) more broadly. We interpret the section as requiring a permit limitation to ensure compliance not just with the three types of State standards listed in the statute but, as also provided in the statute, with any more stringent "State law or regulations" that might be violated by the discharge. The three types of standards listed in the statute-water quality standards, treatment standards, and schedules of compliance-are merely examples of a larger class of State requirements that might trigger the need for a permit limitation under Section 301(b)(1)(C). See Occidental Chemical Agricultural Products, Inc., NPDES Appeal No. 87-6, at 3-4 (CJO, March 23, 1990 CWA §301(b)(1)(C) "does not restrict the subject matter of EPA's permit writing to limitations based on State water quality standards."). This interpretation is borne out by the regulation at 40 CFR § 122.44(d), which implements CWA Section 301(b)(1)(C). Section 122.44(d) provides for the establishment of permit limitations necessary to ensure compliance with State water quality standards and other State requirements. Section 122.44(d)(1) provides that a permit If that is Miami-Dade's point, we disagree. For the reasons set out in the text accompanying this footnote, we believe that even if Rule 17-4.244(3)(c) is not a water quality standard, the Region might still be required under CWA §301(b)(1)(C) to include a permit limitation implementing it. 4 See 40 CFR § 131.3(i): Water quality standards are provisions of State or Federal law (Emphasis added.) * * must contain limitations necessary to ensure compliance with State water quality standards. Requirements other than water quality standards are addressed at § 122.44(d)(5), which provides that the permit must include limitations necessary to: Incorporate any more stringent limitations, treat- Read in context with the rest of Section 122.44(d), the above-quoted provision clearly provides that the permit must incorporate State "limitations" that are neither water quality standards, treatment standards, nor schedule of compliance requirements. Thus, subject to a determination that Miami-Dade's effluent has a reasonable potential for causing or contributing to a violation of Florida's toxicity standard, as discussed in the following section, we conclude that the Region was required under CWA Section 301(b)(1)(C) to include a permit limitation to ensure compliance with the standard. Accordingly, review of this issue is denied. Potential for a Violation: Miami-Dade argues further that under established EPA policy and practice, the Region may not impose the challenged permit provisions unless it first screens the effluent to determine whether there is some potential for a violation of Florida's toxicity standard.5 Miami-Dade believes that the Region does not have enough data to predict the likelihood of a violation, and that the Region, therefore, has no basis for imposing the challenged permit provisions. We agree with Miami-Dade that the Region is required to characterize Miami-Dade's effluent before imposing permit limitations to ensure compliance with Florida's toxicity standard. This requirement is found in Section 301(b)(1)(C) of the Clean Water Act and its implementing regulations at 40 40 CFR § 122.44(d). § 122.44(d). Under Under Section 5 Miami-Dade raised this issue during the comment period when it noted that no screening of the effluent had been performed: "To our knowledge, not a single open ocean sample has ever been analyzed for toxicity although about 50% of the wastewater discharges in the State of Florida are dispersed in the open ocean." Appendix 5, p.1. Miami-Dade raised the issue in its evidentiary hearing request when it discussed the permit's single failed test provision, which provides that a single failed toxicity test will constitute an enforceable violation of the permit. Appendix 8, pp.23. In its evidentiary hearing request, Miami-Dade argues that, before any toxicity testing is required, the Region should first determine whether Miami-Dade's effluent has a potential for causing a violation of Florida's toxicity standard. |