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In re Industrial Chemicals Corp. conditions in a final Clean Water Act (CWA) national pollutant
discharge elimination system (NPDES) permit decision issued by
U.S. Environmental Protection Agency, Region X (Region), for
the discharge of treated waters into Paradise Creek.
In general, Petitioner asserts that the challenged permit condi-
tions are based on clearly erroneous findings of fact and requests that
the allegedly unlawful conditions be set aside or modified as appro-
priate. Petitioner contends that (1) the Region applied an incorrect
design flow in its calculation of permit mass load limits for six efflu-
ent parameters; (2) the Region incorporated incorrect and insuffi-
cient compliance schedules for meeting four of the effluent limits,
and it failed to conform to state certification requirements in this re-
gard; (3) the Region relied on unsubstantiated seasonal data as a ba-
sis for establishing phosphorus limits rather than incorporating a
phased approach with additional study; (4) the Region violated the
[CWA] by misapplying Washington States water quality standards
for temperature and dissolved oxygen (DO
2
); (5) the Regions in-
terpretation of temperature and phosphorus limitations are contrary
to public policy; and (6) the Region erroneously required a Quality
Assurance Project Plan (QAPP) as a permit condition.
Held
The Board denies review of the Petition in its entirety based on
the following findings:
(1) The Region did not err in applying the facilitys current de-
sign flow to calculate mass load limits instead of using, as requested
by Petitioner, an assumption that relates to future plant modifica-
tions. Section 122.45(b)(1) of 40 C.F.R. refers to verifiable design
flow at the time of permit issuance. In view of the lack of clarity in
the record regarding a potential upgrade of the facility to a higher de-
sign flow, the Region did not err in declining to write the permit in a
way that anticipated and allowed for such an upgrade. In addition,
while 40 C.F.R. §122.44(d)(1)(vii)(B) requires consistency with the
requirements of any available waste load allocation (WLA), it did
not, under the circumstances of this case, require Moscows permit
limits to be identical to the WLAs relevant to this matter;
(2) The Region did not err in establishing compliance schedules
that are more stringent than the ones included in the state of Idahos
certification and that require compliance within the term of the per-
mit. The Region can provide compliance schedules only to the ex-
tent such schedules are authorized under state law. Given the prob-
lems inherent in the interpretation of state law reflected in the states
certification, the Region did not clearly err in requiring compliance
within the term of the permit;
(3) The Region did not err in establishing the contested seasonal
constraint for phosphorous as a permit limitation. The seasonal con-
straint is consistent with the applicable total maximum daily load
(TMDL) and is intended to apply for the present, until site-specific
data become available. Furthermore, to the extent that Petitioners
claim entails a challenge to the underlying TMDL, the challenge is
not one the [Environmental Appeals Board (Board)] will enter-
tain. The Board has often emphasized that it will not review predi-
cate regulatory decisions in the context of Board cases unless the cir-
cumstances are exceptional, and nothing in the record justifies devi-
ation from the Boards general practice in this regard;
(4) The Region did not misapply Washington States water qual-
ity standards (WQSs) for temperature and DO
2
. The fact that there
is some indication that Washington State has in practice applied its
own WQSs in a less stringent manner than that contemplated by the
applicable standard does not provide a basis for the Region to devi-
ate from the standard in establishing a permit limit;
(5) Petitioners argument that the permit conditions are so strin-
gent that they could require Petitioner to cease discharging, and that
the cessation of Moscows discharge would harm the receiving wa-
ter body, are appropriately viewed as a challenge to the TMDL and
the Regions decision to incorporate TMDL-based limitations, and
as a claim of technological and/or economical infeasibility. Absent
exceptional circumstances, the Board will not entertain a challenge
to predicate regulatory decisions. In addition, under the CWA, tech-
nological and economical infeasibility do not excuse compliance
with state WQSs; [and]
(6) The Region did not abuse its discretion in requiring a QAPP
as a permit condition. The CWA confers broad authority on the Re-
gion to impose monitoring requirements in NPDES permits. Be-
cause consistent and accurate monitoring are pivotal to the integrity
of NPDES permits, a permit limitation that requires an organized ap-
proach to data monitoring, such as the QAPP requirement here, is
not unreasonable.
[Editors Note: The full text of this EAB decision can be found at
http://www.epa.gov/eab/disk11/moscow.pdf.]
In re Industrial Chemicals Corp.
(CWA Appeal No. 00-7), Oct. 15, 2001
Final Decision
Syllabus
This proceeding arises from inspections by U.S. EPA Region II
(the Region) of a chemical manufacturing facility near Peñuelas,
Puerto Rico (the Facility)[,] owned by Industrial Chemicals Cor-
poration (ICC) to determine the Facilitys compliance with regu-
lations at 40 C.F.R. part 112, which require facilities meeting certain
jurisdictional requirements to prepare, implement, and amend Spill
Prevention Control and Countermeasures Plans (SPCC Plans). In
its inspections, the Region reported that the Facility had failed to
prepare and implement its SPCC Plan in accordance with the regula-
tory guidelines at 40 C.F.R. §112.7 (SPCC guidelines or guide-
lines) that address, in the context of oil spill prevention, such opera-
tional details as diversion and containment of oil; handling of bulk
storage tanks; cleanup of oil spills; the provision of backup or sec-
ondary oil containment; handling of pipelines and other transfer fa-
cilities; loading and unloading operations; recordkeeping and in-
spections; and facility security.
Among the reported deficiencies, the Region noted that ICC had
failed to provide a sufficient volume of secondary containment
around its individual above-ground oil storage tanks. At the time of
the proceeding, the Facility had a facilitywide containment system
of sumps and ponds designed to contain drainage of stormwater, oil
spills, and chemicals, and to prevent the release of these into the Ca-
ribbean Sea, but had not provided individual containment structures
around its oil tanks.
Based on its inspections, the Region filed an administrative com-
plaint against ICC pursuant to Clean Water Act (CWA) section
311(b)(6)(B)(ii), alleging that the company had failed to prepare,
implement, and amend its SPCC Plan as required by 40 C.F.R part
112. The Regions complaint included ten separate claims against
ICC for failing to address SPCC guidelines in its SPCC Plan and [14]
claims against the company for failing to implement these guide-
lines. In proposing a penalty of $15,500 for the companys viola-
tions, the Region employed the Agencys Civil Penalty Policy for oil
spill prevention, which derives from the applicable statutory penalty
factors at CWA section 311(b)(8), 33 U.S.C. §1321(b)(8).
Following an evidentiary hearing, the Presiding Officer issued
his Initial Decision, in which he found ICC liable as alleged by the
Region. In agreeing with the Region that the company had not suffi-
ciently provided for secondary containment around its individual oil
tanks,
the
Presiding
Officer
asserted
that
individualized,
tank-by-tank secondary containment was required by the SPCC
guidelines. In assessing a penalty, the Presiding Officer adopted the
Regions penalty calculation, except for the Regions enhancement
of the penalty based on the companys alleged major culpability in
failing to expeditiously come into compliance with the SPCC regu-
lations. The Presiding Officers penalty calculation resulted in a re-
duced penalty of $11,475.
In its appeal brief, in which it does not contest that it is subject to
40 C.F.R. part 112, ICC disputes only a limited number of the Pre-
siding Officers legal conclusions and factual findings. With respect
to liability, the company argues that the Presiding Officer erred in
finding that the Facility lacked secondary containment for its oil
tanks in violation of the guidelines and asserts that the concentration
of oil and grease in a chemical sample from the Facilitys outfall was
indicative of ICCs good environmental performance. Moreover,
challenging the Presiding Officers penalty assessment, the com-
pany states that its deficiencies in preparing an SPCC Plan were in-
consequential given its super