Petition for Writ of Certiorari — Concerned Citizens for Nuclear Safety, Inc., Petitioner v. Environmental Protection Agency, et al.
Supreme Court briefNov 19, 2020
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APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Order Dismissing for Lack of
Jurisdiction in the United States
Court of Appeals for the Tenth Circuit
(April 23, 2020) . . . . . . . . . . . . . . . App. 1
Appendix B F i n a l
Decision
Before the
Environmental Appeals Board
United States Environmental
Protection Agency Washington, D.C.
(March 14, 2018) . . . . . . . . . . . . . App. 12
Appendix C Letter, U.S. EPA, re: Request to
Terminate NPDES Permit
#NM0028355 as to Outfall #051 for
Radioactive Liquid Waste Treatment
Facility
(August 16, 2017) . . . . . . . . . . . . App. 42
Appendix D Order Denying Petition for Rehearing
in the United States Court of Appeals
for the Tenth Circuit
(June 23, 2020) . . . . . . . . . . . . . . App. 48
Appendix E Statutory Provisions Involved . . App. 50
33 U.S.C. 1342(a)-(b). . . . . . . . . . App. 50
42 U.S.C. 6925(a) . . . . . . . . . . . . App. 55
App. 1
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 18-9542
(EPA No. 17-05)
[Filed: April 23, 2020]
__________________________________________
CONCERNED CITIZENS FOR
)
NUCLEAR SAFETY, INC.,
)
)
Petitioner,
)
)
v.
)
)
UNITED STATES ENVIRONMENTAL
)
PROTECTION AGENCY; UNITED
)
STATES DEPARTMENT OF ENERGY;
)
TRIAD NATIONAL SECURITY, LLC,
)
)
Respondents.
)
__________________________________________)
ORDER DISMISSING FOR LACK OF
JURISDICTION*
*
This order is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be
cited, however, for its persuasive value consistent with Fed. R.
App. P. 32.1 and 10th Cir. R. 32.1.
App. 2
Before MATHESON, MURPHY, and EID, Circuit
Judges.
In 2016, Concerned Citizens for Nuclear Safety, Inc.
(“Concerned Citizens”) filed a petition with the
Environmental Protection Agency (“EPA”) to terminate
an effluent discharge permit held by the Radioactive
Liquid Waste Treatment Facility at Los Alamos
National Laboratory (the “Lab”). Concerned Citizens
asserted that the Lab had experienced a “change in
condition” such that the permit was no longer lawful.
The EPA twice denied Concerned Citizens’ request.
Concerned Citizens appealed to the Environmental
Appeals Board (“EAB”) but was unsuccessful there as
well. Concerned Citizens then filed this appeal, asking
us to reverse the EAB. On appeal, the EPA has
challenged Concerned Citizens’ standing to bring this
lawsuit. We agree with the EPA that Concerned
Citizens lacks standing and dismiss the appeal.1
I.
In 2016, when Concerned Citizens filed its petition
with the EPA, the Lab held a National Pollutant
Discharge Elimination System (“NPDES”) permit to
discharge treated radioactive effluent from Outfall
1
In addition to standing, mootness appears to be another
jurisdictional barrier to Concerned Citizens’ appeal. Concerned
Citizens challenges NPDES Permit No. NM0028355 as to Outfall
051, but that permit expired on September 30, 2019. A.R. at 53.
Because a federal court may “choose among threshold grounds for
denying audience to a case on the merits,” we dismiss this appeal
for lack of standing. Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 585 (1999).
App. 3
051.2 In Re Los Alamos National Security, LLC and
The U.S. Department of Energy, 2018 WL 3629715, at
*1 (EAB 2018). This NPDES permit exempted the Lab
from regulation under both the Resource Conservation
and Recovery Act (“RCRA”) and the New Mexico
Hazardous Waste Act (“HWA”).3
The EPA issued the challenged NPDES permit in
2014 pursuant to the Lab’s 2012 request to renew its
2007 NPDES permit. Id. at *3. Prior to November
2010, the Lab regularly discharged effluent from
Outfall 051. Id. But since November 2010, the Lab has
not discharged effluent from that outfall.4 Id. The Lab
now uses a mechanical evaporator to dispose of
2
The Lab is currently owned by the Department of Energy and
operated by Triad National Security, LLC (“Triad”). Triad assumed
management responsibility on November 1, 2018. When this
appeal was initially filed, the Lab was operated by Los Alamos
National Security, LLC.
3
The RCRA grants the EPA with authority to regulate the
generation, management, and disposal of various hazardous and
non-hazardous waste. See 42 U.S.C. § 6901 et seq. The HWA is
New Mexico’s state program for enforcing the RCRA.
4
In the EPA’s 28(j) notice of additional developments, it informed
the court that, in June 2019, the Lab began discharging
wastewater through Outfall 051 because its solar evaporators were
unavailable. We may not consider this information in our standing
analysis because “[s]tanding is determined as of the time the
action is brought.” Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154
(10th Cir. 2005). Additionally, Concerned Citizens urges us not to
consider this information because it is new evidence that is “not
properly part of the record on appeal.” See Pet. 28(j) Letter
(quoting Utah v. United States DOI, 535 F.3d 1184, 1195 n.7 (10th
Cir. 2008)).
App. 4
effluent. Id. The Lab has also constructed solar
evaporation tanks that it anticipates will eventually
assist in treating effluent. Id.
The Lab disclosed the “no discharge” nature of
Outfall 051 in its 2012 permit renewal application. See
id. at *3–4. The application stated that the facility
“ha[d] not discharged to Outfall 051 since November
2010.” Id. at *3 (quotations omitted) (alteration in
original). Despite the “no discharge” nature of the
outfall, the Lab requested to renew the permit “so that
the [the Lab] can maintain the capability to discharge
should the Mechanical evaporator and/or Zero Liquid
Discharge tanks become unavailable due to
maintenance, malfunction, and/or . . . an increase in
treatment capacity.” Id. at *3 (quotations omitted). In
other words, Outfall 051 was the Lab’s contingency
plan. See id.
In June 2013, EPA Region 6 issued “a public notice
of the draft permit seeking public comment.” Id. at *4.
The fact sheet accompanying the notice stated, “[t]he
effluent is evaporated through a mechanical evaporator
and has no[t] discharge[d] since November 2010. [The
Lab] includes the outfall in the application in case the
evaporator becomes unavailable due to maintenance,
malfunction, and/or capacity shortage.” Id. (quotations
omitted).
No commenter objected to “the . . . continued
authorization of discharges through Outfall 051 during
the comment period.” Id. On August 12, 2014, Region
6 issued its decision approving the renewed permit. Id.
at *5. Concerned Citizens did not file a petition for
App. 5
review objecting to the “inclusion of Outfall 051 in the
2014 Permit.” Id.
In June 2016, Concerned Citizens filed a request
with the EPA Region 6 Judicial Officer to terminate the
Lab’s discharge permit for Outfall 051. Id. at *6.
Concerned Citizens believed that the permit was
unlawful because the Lab had experienced a “change in
condition.” Id. (quoting 40 C.F.R. § 122.64(a)).
According to Concerned Citizens, the change in
condition was the presence of the mechanical
evaporators, which allowed the Lab to avoid
discharging effluent from Outfall 051. See id. The
Judicial Officer denied Concerned Citizens’ request but
noted “that Concerned Citizens could proceed with the
matter before the Regional Administrator.” Id. at *7.
Concerned Citizens did so but was unsuccessful. A.R.
at 178–80. Concerned Citizens then appealed to the
EAB but lost there as well. In Re Los Alamos, 2018 WL
3629715, at *7. The EAB held that for a change in
condition to qualify as grounds for terminating a
permit, the change must have occurred after the permit
had been issued. Id. at *8–11. After losing before the
EAB, Concerned Citizens filed this appeal.
II.
To establish standing under Article III, a party
must show three things: (1) injury in fact, (2) causation,
and (3) redressability. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). An injury in fact, is “‘an
invasion of a legally protected interest’ that is ‘concrete
and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1548 (2016). “Environmental plaintiffs
App. 6
adequately allege injury in fact when they aver that
they use the affected area and are persons for whom
the aesthetic and recreational values of the area will be
lessened by the challenged activity.” Benham v. Ozark
Materials River Rock, LLC, 885 F.3d 1267, 1273 (10th
Cir. 2018) (brackets and quotations omitted). Causation
exists where the alleged injury is “fairly . . . trace[able]
to the challenged action of the defendant.” Lujan, 504
U.S. at 560 (alterations in original). And the
redressability requirement is met where it is “likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Id. (quotations
omitted). When the injury alleged is a procedural
violation, “the requirements for Article III standing are
somewhat relaxed, or at least conceptually expanded.”
WildEarth Guardians v. EPA, 759 F.3d 1196, 1205
(10th Cir. 2014).
An organization has standing to sue on behalf of its
members when “(a) its members would otherwise have
standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization’s
purpose; and (c) [the lawsuit does not require] the
participation of individual members.” Hunt v.
Washington State Apple Advert. Comm’n, 432 U.S. 333,
343 (1977).
III.
The EPA contends that Concerned Citizens has
failed to satisfy any of the three requirements for
standing. We conclude that Concerned Citizens has
failed to establish causation and redressability.
Consequently, we need not decide whether Concerned
Citizens has satisfied the injury-in-fact requirement.
App. 7
See Lujan, 504 U.S. at 560 (indicating all three are
necessary to establish standing). We do, however,
describe the injury alleged by Concerned Citizens
because doing so is necessary to our discussion of
causation and redressability.
The injury alleged by Concerned Citizens was its
members’ diminished use and enjoyment of the Rio
Grande River. To prove this injury, Concerned Citizens
submitted declarations from two of its members. The
first is from Gilbert Sanchez, a member of Concerned
Citizens whose home is “only a few yards from the
shore of the Rio Grande.” G. Sanchez Decl. at 1.
Sanchez “operate[s] a farm and ranch, where sheep,
cattle, and other animals and poultry have been raised
for generations.” Id. He declared that “[s]ince it has
become public knowledge that [the Lab] . . . has
released hazardous chemicals to the Rio Grande and to
the ground water flowing towards the Rio Grande, [his]
appreciation for the river and its shores, and [his] use
of that land and water have sharply declined.” Id. at
2–3. He also stated that “[r]iverside property such as
[his] . . . is now considered undesirable on account of its
proximity to the Rio Grande.” Id. at 3.
The second declaration is from Joni Arends. See J.
Arends Decl. at 1. Arends is a New Mexico attorney
and the executive director of Concerned Citizens. See
id. She declared that she previously used the river
recreationally and professionally (she went on
research-sampling trips on behalf of Concerned
Citizens). See id. at 2–4. But she has not done so since
September 2007 because she is “concerned about the
contamination” from the Lab. See id.
App. 8
To establish causation, Concerned Citizens must
show that its members’ diminished use and enjoyment
of the Rio Grande River is fairly traceable to the Lab’s
NPDES permit to discharge from Outfall 051.
According to Concerned Citizens, the permit exempts
the Lab from compliance with the RCRA and the HWA,
and these permit-based exemptions enable the Lab to
discharge waste into the Rio Grande River. See Reply
Br. at 1–9. As a result, Concerned Citizens argues that
its members’ diminished use and enjoyment is fairly
traceable to the Lab’s NPDES permit. We disagree.
Concerned Citizens has not offered a single example
of a Lab activity that has contributed to increased
contamination of the Rio Grande River and would be
prohibited under the RCRA or the HWA. In their
declarations, Arends and Sanchez opine that
contamination levels would improve if the Lab was
regulated under the RCRA and the HWA. They also
state that they would feel better about using the river
if they knew the Lab was regulated by the RCRA and
the HWA. See, e.g., J. Arends Decl. at 4. (“I am
confident that it would be much wiser and safer to
require the [Lab] . . . to be regulated by a HWA
permit.”). But Arends and Sanchez offer no examples of
Lab activities contributing to contamination that would
be prohibited under either the RCRA or the HWA. See
id. at 1–5; G. Sanchez Decl. at 1–5. Arends and
Sanchez’s speculative statements that it would be
“wiser and safer” to regulate the Lab under the RCRA
and the HWA are insufficient to make the alleged
contamination of the Rio Grande River fairly traceable
to the NPDES permit.
App. 9
Redressability fails for similar reasons. To satisfy
this requirement, the petitioner must show that
favorable court action would likely redress the injury.
Lujan, 504 U.S. at 560. Here, Concerned Citizens
claims that the redressability requirement is met
because the court may hold the Lab’s NPDES permit
invalid, which would require the Lab to comply with
the RCRA and the HWA. However, Concerned Citizens
presents no evidence that any Lab activity would be
prohibited under either the RCRA or the HWA.
Accordingly, Concerned Citizens has failed to show that
it is “likely, as opposed to merely speculative,” that its
members’ diminished use and enjoyment of the Rio
Grande River would “be redressed by a favorable
decision.” See id.
Concerned Citizens contends that it should be held
to lower standing requirements because its alleged
injury was the violation of a procedural right. We
disagree. As mentioned above, we apply “somewhat
relaxed, or at least conceptually expanded” standing
requirements, WildEarth Guardians, 759 F.3d at 1205,
when the petitioner challenges a procedural right that
has been afforded to “protect [the petitioner’s] concrete
interests,” Lujan, 504 U.S. at 572 n.7. Here, however,
the injury alleged by Concerned Citizens is not a
violation of a procedural right.
An injury in fact can be classified as a procedural
violation where “the injury results not from the
agency’s decision, but from the agency’s uninformed
decisionmaking.” WildEarth Guardians, 759 F.3d at
1205. For example, in WildEarth Guardians, the
plaintiff’s injury was classified as “one of process, not
App. 10
result” where the EPA failed to consult with the Fish
and Wildlife Service before promulgating its final
Federal Implementation Plan. Id. The injury was
procedural because the violation did not directly harm
the plaintiff. Instead, the violation impaired the
agency’s decision-making process in a manner that
could have harmed the plaintiff’s concrete interests.
Id.; see also Lujan, 504 U.S. at 573 n.7 (classifying an
injury as procedural in a hypothetical scenario where
the agency issued a license without first “prepar[ing]
an environmental impact statement, even though [the
petitioner could not] establish with any certainty that
the statement [would] cause the license to be withheld
or altered . . .”).
Unlike the procedural injuries described in
WildEarth and Lujan, the injury alleged by Concerned
Citizens resulted from the EPA’s decision, not from
deficiencies in the EPA’s decision-making process.
Concerned Citizens alleges that its members’
diminished use and enjoyment of the Rio Grande River
resulted from the EPA’s issuance of an NPDES permit
to the Lab. According to Concerned Citizens, the
issuance of this permit has allowed the Lab to
contaminate the Rio Grande by exempting the Lab
from regulation under the RCRA and the HWA. Thus,
Concerned Citizens’ injury flows directly from the
EPA’s decision to issue the NPDES permit; it does not
result from any failure by the EPA to follow the proper
decision-making procedure in issuing this permit.
Because Concerned Citizens does not allege a
procedural injury, it is not subject to relaxed standing
requirements.
App. 11
IV.
Concerned Citizens has failed to show that it has
Article III standing. We therefore DISMISS the appeal.
Entered for the Court
Allison H. Eid
Circuit Judge
App. 12
APPENDIX B
NPDES Appeal No. 17-05
[Filed: March 14, 2018]
(Slip Opinion)
NOTICE:
This opinion is subject to formal
revision before publication in the Environmental
Administrative Decisions (E.A.D.). Readers are
requested to notify the Environmental Appeals Board,
U.S. Environmental Protection Agency, Washington,
D.C. 20460, within sixty (60) days of the issuance of
this opinion, of any typographical or other formal
errors, in order that corrections may be made before
publication.
BEFORE THE ENVIRONMENTAL APPEALS
BOARD UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
WASHINGTON, D.C.
_______________________________________
)
In re:
)
)
Los Alamos National Security,
)
LLC and the U.S. Department of
)
Energy
)
)
Permit No. NM0028355
)
_______________________________________)
FINAL DECISION
App. 13
Before Environmental Appeals Judges Mary
Kay Lynch, Kathie A. Stein, and Mary Beth Ward.
IN RE LOS ALAMOS NATIONAL SECURITY,
LLC AND THE
U.S. DEPARTMENT OF ENERGY
NPDES Appeal No. 17-05
FINAL DECISION
__________________
Decided March 14, 2018
__________________
Syllabus
Concerned Citizens for Nuclear Safety (“Concerned
Citizens”) filed an Informal Appeal with the
Environmental Appeals Board (“Board”) under 40
C.F.R. § 124.5(b) seeking review of the U.S.
Environmental Protection Agency Region 6’s (“Region”)
denial of Concerned Citizens’ request to terminate as to
one outfall – referred to as Outfall 051 – a National
Pollutant Discharge Elimination System (“NPDES”)
permit issued for operations at the Los Alamos
National Laboratory in New Mexico (“Los Alamos
Laboratory”).
The Region issued the permit in 2014 (“2014
Permit”) authorizing Los Alamos National Security,
LLC and the U.S. Department of Energy to continue
discharges from eleven sanitary and/or industrial
outfalls at the Los Alamos Laboratory, including the
discharge of treated wastewater from the Radioactive
Liquid Waste Treatment Facility through Outfall 051.
In its Informal Appeal, Concerned Citizens alleges that
App. 14
the Region erred in denying its subsequent request to
terminate the 2014 Permit as to Outfall 051 because
the Los Alamos Laboratory has not discharged liquid
waste from that Outfall since 2010. Concerned Citizens
asserts that permit termination is appropriate under
40 C.F.R. § 122.64(a)(4), which provides that after an
NPDES permit is issued, “[a] change in any condition”
requiring a reduction or elimination of any discharge is
cause for permit termination. In response, the Region
argues that Concerned Citizens failed to establish a
change in any condition justifying permit termination.
Held: The Region did not clearly err or abuse its
discretion in denying Concerned Citizens’ request to
terminate the 2014 Permit as to Outfall 051. When the
Region issued the 2014 Permit, discharges from Outfall
051 had not occurred since 2010 and would only be
necessary if certain equipment became unavailable due
to maintenance, malfunction or capacity shortage.
Under these circumstances, the record supports the
Region’s determination that Concerned Citizens failed
to establish a change in any condition after the Region
issued the 2014 Permit justifying permit termination
pursuant to 40 C.F.R. § 122.64(a)(4). The Board
therefore denies the Informal Appeal.
App. 15
Before Environmental Appeals Judges Mary
Kay Lynch, Kathie A. Stein, and Mary Beth Ward.
Opinion of the Board by Judge Ward:
I. STATEMENT OF THE CASE
Concerned Citizens for Nuclear Safety (“Concerned
Citizens”) filed this Informal Appeal under 40 C.F.R.
§ 124.5(b) seeking review of the denial of its request to
terminate as to one outfall – Outfall 051 – a National
Pollutant Discharge Elimination System (“NPDES”)
permit issued for operations at the Los Alamos
National Laboratory (“Los Alamos Laboratory”). See
Concerned Citizens for Nuclear Safety Submission
Pursuant to 40 C.F.R. §§ 124.2 and 124.5(b) (“Informal
Appeal”) (Sept. 14, 2017); Authorization to Discharge
Under the National Pollutant Discharge Elimination
System, NPDES Permit No. NM0028355 (Aug. 12,
2014) (“2014 Permit”) (Administrative Record (“A.R.”)
II).1 The U.S. Environmental Protection Agency
1
In responding to the Informal Appeal, the Region attached an
index to the administrative record. See “Index to EPA Region 6
Administrative Record (A.R.)” (Oct. 18, 2017). The Region’s Index
lists five documents, each identified with a Roman numeral (I-V).
This decision will cite these documents using the Roman numeral
assigned by the Region along with the title of the document. In
addition, one of the documents in the administrative record
provided by the Region, A.R. IV, is Concerned Citizens’ request to
terminate with respect to Outfall 051 filed with the Regional
Judicial Officer in June 2016 and then resubmitted to the Region
6 Acting Regional Administrator in March 2017 (discussed in
section III.C. of this decision). See Letter from Lindsay A. Lovejoy,
Jr., Jonathan Block, Eric D. Jantz, Douglas Meiklejohn, and
Jaimie Park, Counsel for Concerned Citizens, to Samuel Coleman,
P.E., Acting Administrator, U.S. EPA Region 6 (Mar. 9, 2017)
App. 16
Region 6 (“Region”) issued the permit in 2014
authorizing Los Alamos National Security, LLC and
the U.S. Department of Energy (“Permittees”) to
continue discharges from eleven sanitary and/or
industrial outfalls at the Los Alamos Laboratory,
including discharges of treated wastewater from the
Radioactive Liquid Waste Treatment Facility
(“Treatment Facility”) through Outfall 051. See 2014
Permit Pt. I at 6. Concerned Citizens participated in
the permitting process leading up to the issuance of the
2014 Permit.
In the current appeal, Concerned Citizens alleges
that the Region erred in denying its subsequent
request to terminate the 2014 Permit as to Outfall 051
because the Los Alamos Laboratory has not discharged
liquid waste from that outfall since 2010. See
Informal Appeal at 1. Concerned Citizens asserts that
permit termination is appropriate under 40 C.F.R.
§ 122.64(a)(4), which provides that after a permit is
issued, “[a] change in any condition” requiring a
reduction or elimination of any discharge is cause for
permit termination. See id. at 3-11. In response, the
Region argues that Concerned Citizens failed to
establish a change in any condition justifying permit
termination. See EPA Response to Concerned Citizens
for Nuclear Safety’s Informal Appeal of EPA’s Denial of
(enclosing Request to Terminate NPDES Permit # NM0028355 as
to Outfall 051 for the Radioactive Liquid Waste Treatment
Facility) (June 17, 2016) (“Termination Request”)). The
Termination Request attaches multiple exhibits. This decision
cites to these exhibits as “Ex. __ to Termination Request.”
App. 17
Request to Terminate Permit Authorization (Oct. 18,
2017) (“Region’s Response”).
We conclude that the Region did not clearly err or
abuse its discretion. The record supports the Region’s
determination that Concerned Citizens failed to
establish a change in a condition justifying permit
termination after the Region issued the 2014 Permit.
The Informal Appeal is therefore denied.
II. REGULATORY HISTORY
EPA’s consolidated permitting regulations provide
detailed procedures for EPA’s issuance or renewal of
permits under NPDES and other permit programs.
Those regulations require EPA to issue a draft permit,
seek public comment, hold a public hearing where
there is significant public interest in the draft permit,
and respond to significant comments received when a
final permit decision is issued. See 40 C.F.R. §§ 124.6.12, .17. The regulations specify the procedures and
grounds for an appeal of a permit decision at 40 C.F.R.
§ 124.19. After EPA issues an NPDES permit, however,
40 C.F.R. § 124.5 allows “any interested person” to
request termination under that regulation only for the
reasons listed in 40 C.F.R. § 122.64. In particular,
section 124.5 states, in part:
(a) Permits * * * may be modified, revoked and
reissued, or terminated, either at the request of
any interested person * * * or upon the
[Region’s2] initiative. However, permits may
2
The regulations use the term “Director” to describe the
permitting authority. 40 C.F.R. § 124.2 (defining “Director”). The
App. 18
only be * * * terminated for the reasons specified
in * * * [40 C.F.R.] § 122.64 * * *.
40 C.F.R. § 124.5 (emphasis added). And 40 C.F.R.
§ 122.64 in turn identifies four bases for “terminating
a permit during its term:”
(1) Noncompliance by the permittee with any
condition of the permit;
(2) The permittee’s failure in the application or
during the permit issuance process to disclose
fully all relevant facts, or the permittee’s
misrepresentation of any relevant facts at any
time;
(3) A determination that the permitted activity
endangers human health or the environment
and can only be regulated to acceptable levels by
permit modification or termination; or
(4) A change in any condition that requires
either a temporary or permanent reduction or
elimination of any discharge or sludge use or
disposal practice controlled by the permit (for
example, plant closure or termination of
discharge by connection to a POTW).
40 C.F.R. § 122.64(a).
permitting authority here is EPA’s Regional Administrator for
Region 6. The Board will therefore refer to the Region in places
where the regulations use the term “Director.” See id. (“When
there is no approved State * * * program, and there is an EPA
administered program, ‘Director’ means the Regional
Administrator.”).
App. 19
Concerned Citizens’ Informal Appeal relies on the
fourth basis for termination at 40 C.F.R.
§ 122.64(a)(4) – where there has been “[a] change in
any condition” since permit issuance.
III. FACTUAL HISTORY
To best understand the issue raised by Concerned
Citizens – that there has been “[a] change in any
condition” after the Region issued the 2014 Permit – we
describe in detail below the Treatment Facility, the
process leading to issuance of the 2014 Permit, and
Concerned Citizens’ subsequent termination request.
A.
The Los Alamos Laboratory
The Los Alamos Laboratory is located on forty
square miles in Los Alamos County in north-central
New Mexico, approximately sixty miles north-northeast
of Albuquerque. See Los Alamos National Laboratory
NPDES Permit Re-Application, Permit No. NM0028355
at ¶ 3.0 (Feb. 2012) (“2012 Permit Re-Application”)
(A.R. I) and attached 2012 NPDES Re-Application
Outfall Fact Sheet for Outfall 051 (“2012 ReApplication Fact Sheet – Outfall 051") (A.R.I.A.). The
Los Alamos Laboratory provides for “stockpile
stewardship” and engages in “extensive basic research
in physics, chemistry, metallurgy, mathematics,
computers, earth sciences, and electronics.” 2012
Permit Re-Application at ¶ 3.1.
B.
The 2012 Permit Re-Application and the 2014
Permit
In February 2012, the Los Alamos National
Security, LLC and the U.S. Department of Energy
App. 20
submitted an application for renewal of the Los Alamos
Laboratory’s then-existing NPDES permit, issued in
August 2007, to authorize continued discharges from
eleven outfalls, including discharges from the
Treatment Facility to the Facility’s one Outfall, Outfall
051. See 2012 Permit Re-Application at ¶ 4.0 & Table
4.1. The Treatment Facility treats low-level and
transuranic radioactive liquid waste from various
locations at the Laboratory. 2012 Re-Application Fact
Sheet – Outfall 051 at 1.
Prior to 2010, treated wastewater from the
Treatment Facility was regularly discharged to Outfall
051. See 2012 Permit Re-Application at ¶ 2.0; 2012 ReApplication Fact Sheet – Outfall 051 at 1, 5. As the
Permittees stated in their 2012 Re-Application,
however, the Treatment Facility “ha[d] not discharged
to Outfall 051 since November 2010” due to changes in
facility operations prior to re-application, including the
use of a mechanical evaporator. See 2012 ReApplication Fact Sheet – Outfall 051 at 5. The
Permittees also identified the anticipated construction
of two new solar evaporation tanks – referred to as
“Zero Liquid Discharge” tanks – that would serve the
same function as the mechanical evaporator of
receiving treated effluent from the Treatment Facility.
See id. at 5, 7. Permittees nevertheless requested repermitting of Outfall 051, “so that the [Treatment
Facility] can maintain the capability to discharge to the
outfall should the Mechanical Evaporator and/or Zero
Liquid Discharge * * * tanks become unavailable due to
maintenance, malfunction, and/or there is an increase
in treatment capacity caused by changes in [the
Laboratory’s] scope/mission.” Id. at 5 (emphasis added).
App. 21
Permittees further noted that “[a] grab sample [of the
effluent] will be collected from Outfall 051 when/if the
[Treatment Facility] discharges effluent through the
[O]utfall.” Id. (emphasis added). See also Form 2C to
the 2012 Permit Re-Application at 6-14 (same).
In June 2013, the Region issued a public notice of
the draft permit seeking public comment. See NPDES
Permit No. NM0028355 Response to Comments at 2
(Aug. 4, 2014) (“Response to Comments”) (A.R. III). The
Region’s Fact Sheet accompanying the 2013 draft
permit stated: “The effluent is evaporated through a
mechanical evaporator and has no discharge since
November 2010. [Los Alamos Laboratory] includes the
outfall in the application in case the evaporator
becomes unavailable due to maintenance, malfunction,
and/or capacity shortage.” NPDES Permit No.
NM0028355, Fact Sheet for the Draft [NPDES] Permit
to Discharge to Waters of the United States at 12 (June
26, 2013) (Ex. NN to Termination Request) (emphasis
added).
In their August 2013 comments on the draft permit,
the Permittees reiterated that “the * * * [Treatment
Facility has] not discharged [to Outfall 051] since
November 2010 as a result of using the mechanical
evaporator” and that it sought to re-permit the Outfall
in the event that the mechanical evaporator or now
constructed evaporation tanks (once permitted and in
use) were not functioning: “Based on discharge records
prior to November 2010, and with options of using the
existing mechanical evaporator or new [Zero Liquid
Discharge] evaporation tanks, [the Treatment Facility]
would discharge to Outfall 051 only once or twice per
App. 22
week if evaporation is not an option.” Letter from
Alison M. Dorries, Division Leader, Environmental
Protection Division, Los Alamos National Security,
LLC, and Gene E. Turner, Environmental Permitting
Manager, Los Alamos Field Office, Department of
Energy, to Diane Smith, U.S. EPA Region 6 Permit
Processing Team, Enclosure 1 at 3 (Aug. 13, 2013)
(emphasis added) (“Los Alamos Laboratory Comments
on 2013 Draft Permit”) (Ex. OO to Termination
Request).
Further, because Los Alamos Laboratory
anticipated that future discharges to Outfall 051 – if
they were to resume – were likely to be intermittent,
its August 2013 comments requested modification of a
provision in the draft permit’s continuous flow
monitoring requirements for Outfall 051: “[The
Treatment Facility] has not discharged since November
2010. If discharges to the Outfall 051 resume, it is
estimated that [Treatment Facility] would only
discharge intermittently * * *.” Id. at 7 (emphasis
added).
Although Concerned Citizens apparently filed
comments on other parts of the draft permit, no
commenter objected to the 2014 Permit’s continued
authorization of discharges through Outfall 051 during
the comment period on the draft permit.3 See generally
3
In its response to Concerned Citizens’ Informal Appeal, the
Region represents that Concerned Citizens joined another
organization, Communities for Clean Water, in submitting
comments on the 2013 draft permit and that the Region responded
App. 23
Response to Comments.
The Region issued its 2014 permit determination on
August 12, 2014. In the Region’s August 2014 Response
to Comments on the draft permit, the Region agreed
that continuous monitoring was not necessary because
the Treatment Facility had not discharged to Outfall
051 since November 2010 and would only discharge
intermittently even “if discharges resume.” Response to
Comments at 17. Consequently, although the 2014
Permit includes discharge parameters for Outfall 051,
the Permit requires only that a one-time grab sample
be taken “if a discharge occurs at Outfall 051.” 2014 Pt.
I.E. at 26 (emphasis added).
The deadline for filing a petition for review of the
Region’s 2014 Permit renewal decision with the Board
was in September 2014. 40 C.F.R. § 124.19(a).4 Neither
Concerned Citizens nor any other party filed a petition
for review with the Board under 40 C.F.R. § 124.19
to those comments. See Region’s Response at 14 (citing Response
to Comments at 9-13). The Region states that these comments did
not raise the issue of whether the permit should authorize
discharges from Outfall 051. Id. In its Reply to the Region’s
Response, Concerned Citizens indicates that the Region correctly
characterized Concerned Citizens’ participation during the public
comment period. See Concerned Citizens for Nuclear Safety Reply
Submission Pursuant to 40 C.F.R. §§ 124.2 and 124.5(b) at 16
(Nov. 3, 2017).
4
Under 40 C.F.R. § 124.19(a), any person filing comments on the
draft permit or participating in a public hearing on the draft
permit may file a petition for review with the Board within thirty
days after the Region serves notice of issuance of a permit.
40 C.F.R. § 124.19(a)(2)-(3).
App. 24
objecting to the inclusion of Outfall 051 in the 2014
Permit. However, Permittees filed a petition for review
with the Board challenging the 2014 Permit’s
imposition of monitoring and sampling requirements
for selenium at a different outfall (Outfall 03A048). At
the request of the parties, the Board dismissed the
petition after the Region removed the disputed permit
provision. See In re Los Alamos Nat’l Lab., NPDES
Appeal No. 14-02 (EAB Apr. 27, 2015) (Order
Dismissing Petition for Review).
C.
Concerned Citizens’ 2015 Letter Challenging
Issuance of 2014 Permit and 2016 Termination
Request
A little over a year later, in November 2015, new
attorneys representing Concerned Citizens sent a letter
to the Region questioning the need for the 2014 Permit.
See Letter from Stacey Dwyer, Associate Director, U.S.
EPA Region 6, NPDES Permits and TMDL Branch, to
Lindsay A. Lovejoy, Jr., Attorney at Law, 3600
Cerrillos Rd., Santa Fe, NM (Dec. 18, 2015) (“Region’s
2015 Response Letter”) (Ex. UU to Termination
Request) (referencing Concerned Citizens’ Nov. 2015
letter). Concerned Citizens did not request termination
of the 2014 Permit and instead asked for the Region’s
justification for issuance of the Permit in the first
instance. In particular, the letter stated that because
the Treatment Facility has been designed to eliminate
all discharges and there have been no discharges since
2010, there was no need for the Permit, and, pursuant
to federal case law, the Region lacked jurisdiction
under the Clean Water Act to have issued the 2014
Permit for Outfall 051. Id. at 1-2; see also Ex. 7 to
App. 25
Informal Appeal (attaching Concerned Citizens’ Nov.
2015 letter).
In response, the Region stated that it had reexamined its permit file and determined that it would
not alter its permit determination. Region’s 2015
Response Letter. Although no discharges had occurred
since 2010, the Region stated, in part, that: “[Los
Alamos Laboratory] specifically sought permit
coverage for Outfall 051 to protect against liability in
case of a future discharge. In its application, [Los
Alamos Laboratory] indicated that under certain
circumstances, e.g.[,] maintenance, malfunction, and/or
capacity shortage, a discharge could occur and permit
authorization would be needed.” Id. at 1. The Region
also disagreed that it lacked jurisdiction to issue a
permit for potential discharges where, as here, the
permittee requested coverage “for a possible future
discharge.” Id. at 2.
In June 2016, Concerned Citizens filed with the
Regional Judicial Officer a request to terminate the
2014 Permit with respect to Outfall 051 pursuant to
40 C.F.R. §§ 124.5 and 122.64(a)(4).5 See Termination
Request (June 17, 2016) (A.R. IV). As noted above,
section 124.5 allows any person to request termination
of an NPDES permit during its term based on: “(4) A
change in any condition that requires either a
temporary or permanent reduction or elimination of
any discharge or sludge use or disposal practice
controlled by the permit (for example, plant closure or
5
Concerned Citizens did not allege that 40 C.F.R. § 122.64(a)(1)-(3)
served as a basis for termination.
App. 26
termination of discharge by connection to a POTW).”
40 C.F.R. § 122.64(a). In particular, Concerned Citizens
stated that, since at least 1998, Los Alamos Laboratory
had engaged in an effort to eliminate liquid discharges
from the Treatment Facility to Outfall 051. See
Termination Request at 3-11 (citing Elimination of
Liquid Discharge to the Environment from the TA-50
Radioactive Liquid Waste Treatment Facility, David
Moss, et. al., Los Alamos National Laboratory, at vi
(June 1998) (Ex. A to Termination Request)
(recommending a “phased transition toward zero liquid
discharge” through Outfall 051). Concerned Citizens
further noted that as a result of these efforts, the
Treatment Facility had not discharged any wastes
through Outfall 051 since November 2010. Id. at 10-11.
Concerned Citizens also acknowledged that in the
2012 Permit Re- Application, Permittees had “expressly
requested a permit [for Outfall 051] only for a possible
discharge” and as a “fallback” for “use in possible
contingencies.” See Id. at 9; see also id. at 10 (stating
that 2012 Permit Re-Application sought leave to
provide effluent characteristics for Outfall 051 only “if
discharges * * * are initiated during the life of the new
permit”), 11 (stating that the final permit refers to
regulation of discharges from Outfall 051 “if discharges
resume”) (emphasis in original). Nevertheless, because
no discharges had occurred since 2010, Concerned
Citizens asserted that Los Alamos Laboratory had no
need for or intention of discharging through Outfall
051. Id. at 11. Given the continued lack of any
discharges from Outfall 051, Concerned Citizens
asserted that termination was justified under 40 C.F.R.
App. 27
§ 122.64(a)(4). See id. at 17 (asserting that the permit
must be terminated “due to lack of discharge”).
Concerned Citizens further argued that EPA lacked
the authority under the Clean Water Act (“CWA”) to
issue a permit for potential discharges that could occur
sometime in the future. Id. at 12-15. Finally,
Concerned Citizens suggested that Los Alamos
Laboratory sought to maintain Outfall 051 as a
permitted discharge for the Treatment Facility because
coverage under the 2014 Permit allows Los Alamos
Laboratory to obtain a Waste Water Treatment Unit
exemption under another federal law, the Resource
Conservation and Recovery Act (“RCRA”), and loss of
the exemption would require Los Alamos Laboratory to
meet additional RCRA requirements. Id. at 3-6 (citing
RCRA § 1004(27), 42 U.S.C. § 6903(27); 40 C.F.R.
§§ 260.10, 264.1(g)(6)).
On March 2, 2017, the Regional Judicial Officer
dismissed Concerned Citizens’ termination request for
lack of jurisdiction under 40 C.F.R. § 124.5, but stated
that Concerned Citizens could proceed with the matter
before the Regional Administrator. See In re Concerned
Citizens for Nuclear Safety (CCNS) Request to
Terminate NPDES Permit #NM0028355 (Permit) for
Los Alamos Nat’l Lab. Radioactive Liquid Waste
Treatment Facility, (RJO, Mar. 2, 2017) (referencing
June 2016 Termination Request).6 Thereafter, on
6
Although the Regional Judicial Officer’s Order is not part of the
administrative record identified by the Region, the Board takes
official notice of it as a public document. See, e.g., In re Donald
Cutler, 11 E.A.D. 622, 650-51 (EAB 2004) (explaining that
information in the public domain is subject to official notice by the
App. 28
March 9, 2017, Concerned Citizens resubmitted its
termination request to the Regional Administrator. See
Letter from Lindsay A. Lovejoy, Jr., Jonathan Block,
Eric D. Jantz, Douglas Meiklejohn, and Jaimie Park,
Counsel for Concerned Citizens, to Samuel Coleman,
P.E., Acting Administrator, U.S. EPA Region 6 (Mar. 9,
2017) (A.R. IV) (enclosing Request to Terminate
NPDES Permit # NM0028355 as to Outfall 051 for the
Radioactive Liquid Waste Treatment Facility (June 17,
2016)).
D.
Region 6’s Denial of Concerned Citizens’
Termination Request
In August 2017, the Region denied Concerned
Citizens’ request pursuant to 40 C.F.R. § 124.5(b).7 The
Region determined that Concerned Citizens’ request to
terminate the 2014 Permit as to Outfall 051 was not
justified because Concerned Citizens failed to
demonstrate that there had been “[a] change in any
condition” after the 2014 Permit was issued justifying
termination under 40 C.F.R. § 122.64(a)(4). See Letter
from William K. Honker, Director, Water Division, U.S.
EPA Region 6, to Lindsay A. Lovejoy, Jr., Attorney at
Law, and Jonathan Block, Eric D. Jantz, Douglas
Meiklejohn, and Jaimie Park, New Mexico
Board); In re City of Denison, 4 E.A.D. 414, 419 n.8 (EAB 1992)
(taking official notice of administrative order not part of
proceeding before Board).
7
40 C.F.R. § 124.5(b) states, in pertinent part, that “[i]f the
[Region] decides that the [termination] request is not justified, he
or she shall send the requester a brief written response giving a
reason for the decision.”
App. 29
Environmental Law Center, Counsel for Concerned
Citizens (Aug. 16, 2017) (“Region 6 Letter”) (A.R. V).
The Region also rejected Concerned Citizens’ assertion
that EPA lacked the authority under the CWA to issue
the NPDES permit for potential discharges. Id. at 2.
Finally, the Region concluded that “[w]hether or not
issuance of NPDES permit coverage might trigger the
RCRA [Waste Water Treatment Unit] regulatory
exemption has no bearing on EPA’s NPDES permitting
decisions, which must be based on the requirements of
the CWA and implementing regulations.” Id. at 3.
E.
Informal Appeal to the Board
On September 14, 2017, Concerned Citizens timely
filed an Informal Appeal with the Board under
40 C.F.R. § 124.5(b) seeking review of the Region’s
denial of Concerned Citizens’ termination request.8 On
September 21, 2017, the Board issued an Order for
Additional Briefing requiring that the Region file a
response to the Informal Appeal and requesting that
the parties address certain issues in their replies.
Thereafter, on September 25, 2017, the Board issued
an order granting the parties’ request to extend
deadlines for the Region’s and the Permittees’
responses as well as Concerned Citizens’ reply. The
Permittees and the Region filed responses on October
16 and 18, 2017, respectively.9 Concerned Citizens filed
8
Under 40 C.F.R. § 124.5(b), denials of requests for termination
“may be informally appealed to the Environmental Appeals Board
by a letter briefly setting forth the relevant facts.”
9
See Letter from Susan L. McMichael, Attorney, Office of
Laboratory Counsel, Los Alamos National Laboratory, and Silas R.
App. 30
a reply on November 3, 2017, and requested oral
argument.10 On February 22, 2018, the Board heard
oral argument in this case.11 For the reasons stated
below, the Board denies Concerned Citizens’ Informal
Appeal.12
III. STANDARD OF REVIEW
Unlike the procedures governing Board review of
permit determinations under 40 C.F.R. § 124.19, the
regulations governing informal appeals from the denial
of a request to terminate a permit under 40 C.F.R.
DeRoma, Field Office Counsel, U.S. Department of Energy, to
Clerk of the Board, U.S. EPA Environmental Appeals Board, and
enclosed Aff. of Michael Thomas Saladen, Environmental Manager
at LANL (Oct. 12, 2017); EPA Response to Concerned Citizens for
Nuclear Safety’s Informal Appeal of EPA’s Denial of Request to
Terminate Permit Authorization (Oct. 18, 2017) (“Region’s
Response”).
10
Concerned Citizens for Nuclear Safety Reply Submission
Pursuant to 40 C.F.R. §§ 124.2 and 124.5(b).
11
Concerned Citizens, the Region, and Permittees (Los Alamos
National Security, LLC and the U.S. Department of Energy) all
participated in oral argument. See EAB Hearing Transcript (“Tr.”)
(Feb. 22, 2018).
12
Under 40 C.F.R. § 124.5(b), the “appeal shall be considered
denied if the Environmental Appeals Board takes no action on the
letter within 60 days after receiving it.” The Board’s September 21
and 25 orders constituted sufficient “action” necessary to keep this
matter alive beyond the sixtieth day, allowing the Board to now
address this Informal Appeal on the merits. See In re Waste Techs.
Indus., 5 E.A.D. 646, 655 n.13 (EAB 1995) (order for supplemental
briefing is sufficient action for purposes of the sixty-day period
specified in 40 C.F.R. § 124.5(b)).
App. 31
§ 124.5 do not specify the Board’s standard of review.
Upon consideration, the Board will adopt for informal
appeals the same standard used for appeals of permit
determinations under 40 C.F.R. § 124.19. Specifically,
a party seeking review under 40 C.F.R. § 124.5 must
demonstrate that the Region’s determination was
based on either a finding of fact or conclusion of law
that was clearly erroneous or was an abuse of
discretion. See 40 C.F.R. § 124.19(a)(4)(i)(A)-(B).13 The
issues that may arise in a proceeding under 40 C.F.R.
§ 124.5 are not necessarily different or less significant
than the issues that arise in a proceeding under 40
C.F.R. § 124.19. Where, as here, the Board has decided
to consider an informal appeal under 40 C.F.R. § 124.5,
see supra note 12, the issues presented warrant Board
consideration under the same standard of review as
issues arising in proceedings under 40 C.F.R. § 124.19.
Moreover, adopting this standard will serve
administrative efficiency and will provide for
consistency in addressing future appeals to the Board
whether formal or informal. Cf. 40 C.F.R. § 124.19(n)
(stating that the Board “may do all acts and take all
measures necessary for the efficient, fair, and impartial
adjudication of issues arising in an appeal”).
13
This standard is in keeping with the Board’s other review on the
merits of an informal appeal under 40 C.F.R. § 124.5. See, e.g., In
re Waste Tech. Inds., 5 E.A.D. 646 (EAB 1995). Although the Board
in Waste Technologies did not explicitly address the standard of
review for informal appeals, the Board found that the permit
issuer “committed no error” in its permit determination and
adequately justified that determination. Id. at 662-63.
App. 32
IV. ANALYSIS
A.
The Region Did Not Clearly Err or Abuse its
Discretion in Denying the Termination Request
In this Informal Appeal, Concerned Citizens asserts
that permit termination proceedings are appropriate
for the reason specified in 40 C.F.R. § 122.64(a)(4)
because “no discharges of water or pollutants are
planned or expected for Outfall 051, and no such
discharges have occurred since November 2010.”
Informal Appeal at 3.
Under 40 C.F.R. § 122.64(a)(4), a cause for
“terminating [an NPDES] permit during its term”
includes: “[a] change in any condition that requires
either a temporary or permanent reduction or
elimination of any discharge * * * controlled by the
permit (for example, plant closure or termination of
discharge by connection to a POTW).” 40 C.F.R.
§ 122.64(a)(4). As noted, the regulation states plainly
that termination is an action that occurs “during [the
permit’s] term.” Id. Therefore, “[a] change” for purposes
of termination is one that occurs after permit issuance.
See also 40 C.F.R. § 122.62(a)(1) (similarly requiring
certain “changes” to have “occurred after permit
issuance” to allow modification of a permit). And to
read “[a] change” for purposes of termination some
other way would effectively write the phrase “during its
term” out of 40 C.F.R. § 122.64(a). The Informal
Appeal, however, does not allege “[a] change in any
condition” at Outfall 051 since issuance of the 2014
Permit. Indeed, in quoting the language of this
provision, Concerned Citizens omits the reference to
“[a] change in any condition.” See Informal Appeal at 3
App. 33
(quoting only the portion of section 122.64(a)(4)
referring to the “elimination of any discharge * * *
controlled by the permit.”). Thus, on its face, the
Informal Appeal fails to demonstrate that the Region
clearly erred or abused its discretion in denying the
request to terminate.
The record supports the Region’s determination that
there has not been “[a] change in any condition” at
Outfall 051 since issuance of the 2014 Permit.
Although not explicitly stated, Concerned Citizens
appears to suggest that the passage of additional time
since issuance of the 2014 Permit by itself constitutes
a sufficient basis for termination. See id. at 5. However,
when Permittees applied for renewal of their permit,
they advised the Region that discharges from Outfall
051 had not occurred “since November 2010" and would
only be necessary “should the Mechanical Evaporator
and/or Zero Liquid Discharge * * * tanks become
unavailable due to maintenance, malfunction, and/or
there is an increase in treatment capacity caused by
changes in [the Laboratory’s] scope/mission.” 2012 ReApplication Fact Sheet at 5 (emphasis added).14 As the
Region explained in the Fact Sheet accompanying the
2013 draft permit, “[Los Alamos Laboratory] includes
14
See also 2012 Re-Application Fact Sheet, Form 2C at 6-14
(same). Form 2C of the 2012 Re-Application Fact Sheet states
further that an effluent sample “will be collected from Outfall 051
when/if the [Treatment Facility] discharges effluent to Mortandad
Canyon.” Id. (emphasis added). Further, in their comments on the
2013 draft permit, Permittees stated that “[i]f discharges to the
Outfall 051 resume, it is estimated that [Treatment Facility] would
only discharge intermittently.” Los Alamos Laboratory Comments
on 2013 Draft Permit at 7 (emphasis added).
App. 34
[Outfall 051] in the application in case the evaporator
becomes unavailable due to maintenance, malfunction,
and/or capacity shortage.” NPDES Permit No.
NM0028355, Fact Sheet for the Draft [NPDES] Permit
to Discharge to Waters of the United States at 12 (June
26, 2013) (Ex. NN to Termination Request) (emphasis
added). And when the Region issued the 2014 Permit,
it reiterated that discharges from Outfall 051 had not
occurred “since November 2010,” imposing certain
monitoring requirements only “if discharges resume.”
Response to Comments at 17; see also 2014 Permit Part
I.E. at 26 (requiring that Permittees take a one-time
grab sample of effluent from Outfall 051 “if a discharge
occurs”) (emphasis added). Thus, the passage of
additional time without a discharge from Outfall 051
since issuance of the 2014 Permit was expected, was
made known during the permit proceeding, and does
not amount to a change in any condition justifying
termination. Under these circumstances, the Informal
Appeal fails to demonstrate the Region clearly erred or
abused its discretion in denying the termination
request.
In its Reply, Concerned Citizens makes conclusory
claims that there have in fact been “massive and
obvious” changes to the Treatment Facility and its
operation that, according to Concerned Citizens, justify
termination of the 2014 Permit for Outfall 051 under
40 C.F.R. § 122.64(a)(4). Concerned Citizens for
Nuclear Safety Reply Submission Pursuant to 40
C.F.R. §§ 124.2 and 124.5(b) (“Concerned Citizens
Reply”) (Nov. 3, 2017) at 7. However, these alleged
changes – the use of a mechanical evaporator and the
anticipated use of the Zero Liquid Discharge tanks
App. 35
designed to reduce or eliminate discharges from the
Treatment Facility – were identified in the 2012 Permit
Re-Application and the Region’s Fact Sheet for the
2013 draft permit prior to the 2014 Permit’s issuance.
Thus, they do not reflect “[a] change in any condition”
since issuance of the 2014 Permit warranting
termination pursuant to 40 C.F.R. § 122.64(a)(4).15
And maintaining the integrity and finality of the
permitting process for permittees and other
stakeholders requires Concerned Citizens to show that
there has been “[a] change in any condition” since
issuance of the 2014 Permit. When EPA is deciding
whether to issue or renew a permit, the public is given
a full opportunity to participate in and challenge any
aspect of the permit. EPA’s permitting regulations
direct EPA to issue a draft permit, to seek public
comment for no less than thirty days, to hold a public
hearing where there is a significant degree of public
interest in a draft permit, and to issue a response to
significant comments received at the time the final
permit is issued. 40 C.F.R. § 124.6 - .12, .17. The public
in turn is required to raise “all reasonably
ascertainable issues and submit all reasonably
available arguments supporting their position by the
15
During oral argument, Concerned Citizens objected to any
finding that its termination request was untimely because the
issues raised in that request were not raised during the
proceedings leading to issuance of the 2014 Permit. Tr. at 61-62.
The Board’s decision, however, is not based on any finding that the
termination request was untimely, but rather the Region’s finding
that the request fails to demonstrate a basis for termination
because there has been no “change of any condition” since permit
issuance under 40 C.F.R. § 122.64(a)(4).
App. 36
close of the comment period.” Id. § 124.13. And under
section 124.19, a party may seek to challenge any
condition of a final permit so long as it files a petition
for review with the Board within thirty days of
issuance. See id. § 124.19(a)(3), (4).
Once the permit is issued, however, the regulations
at 40 C.F.R. § 122.64(a) and § 124.5 specify that EPA
may only terminate a permit during its term for one of
four listed reasons. Initially, EPA’s permitting
regulations applicable to state NPDES programs
allowed the Agency to terminate a permit for cause,
“including, but not limited to,” “[a] change in any
condition that requires either a temporary or
permanent reduction or elimination of the permitted
discharge.” State Program Elements Necessary for
Participation in the NPDES, 37 Fed. Reg. 28,390,
28,397 (Dec. 22, 1972). EPA included identical
language in promulgating regulations applicable to
federal NPDES programs in 1973. See National
Pollution Discharge Elimination System, 38 Fed. Reg.
13,528, 13,533 (May 22, 1973). In 1979, however, EPA
revised the regulations to remove the phrase
“including, but not limited to” so as to allow for
termination “only in certain limited circumstances.”
See National Pollution Discharge Elimination System;
Revision of Regulations, 44 Fed. Reg. 32,854, 32,868,
32,912 (June 7, 1979). In addition, the Agency agreed
with commenters that the causes for permit
modification should be listed separately from the “more
‘severe’ measure” of termination. Id. In 1980, when
EPA issued consolidated regulations governing its
permitting programs, it expressed the expectation that
the bases for termination in 40 C.F.R. § 122.64(a)
App. 37
would not be read broadly. See Consolidated Permit
Regulations, 45 Fed. Reg. 33,290, 33,316 (May 19,
1980). Further, although the proposed rule included
“other good cause” as a ground for termination, EPA
chose not to include this as a basis for termination in
the 1980 consolidated regulations because it was too
“vague and open ended.” Id. at 33,317. The limited
scope of 40 C.F.R. § 122.64(a) has remained unchanged
for almost forty years now.
And the more abbreviated process EPA must follow
before denying a request to terminate (as opposed to
the process for issuing or renewing a permit) further
supports the point that a request to terminate was not
intended to be a basis to reopen the original permit
decision. EPA does not need to issue a public notice or
provide an opportunity for comment before denying a
request to terminate. Instead, EPA need only “send the
requester a brief written response giving a reason for
the decision” not to terminate. 40 C.F.R. § 124.5(b); see
also id. § 124.10(a)(2).
Notably, although much of the Informal Appeal
focuses on Concerned Citizens’ assertion that the
Region erred in issuing the 2014 Permit in the first
instance,16 it does not seek, nor could it seek, to
16
See, e.g., Informal Appeal at 2 (contesting the Region’s “issuance
of an NPDES permit” for possible discharges from Outfall 051), 2-3
(stating that the Region’s position that it may “issue an NPDES
permit” for possible discharges is “in error”), 5 (discussing EPA’s
limited authority under the CWA to “issue NPDES permits” for
potential discharges), and 7-8 (challenging the Region’s position
that it can “issue an NPDES permit” at the request of the owner or
operator) (emphasis added).
App. 38
challenge the 2014 Permit now. And it fails to
demonstrate that the Region erred or abused its
discretion in denying the request to terminate the 2014
Permit under 40 C.F.R. § 122.64(a)(4). Instead,
Concerned Citizens may raise the issues it raises here,
or any other issue it chooses, in any future permit
renewal process for the Los Alamos Laboratory when
the 2014 Permit expires in September 2019, and file a
petition for review with the Board from any future
permit at that time under 40 C.F.R. § 124.19. See also
Tr. at 40-41.17
B.
Concerned Citizens’ Contention That Permittees
Never Disclosed that Discharges to Outfall 051
Might Not Occur is Untimely and Not Supported
by the Record Here
In its Reply, Concerned Citizens argues further that
it could not have contested the 2014 Permit at the time
the Permit was issued, implying that Los Alamos
Laboratory never disclosed the possibility that
discharges to Outfall 051 might not occur. See
Concerned Citizens Reply at 8. Specifically, Concerned
Citizens now asserts that during the 2014 Permitting
process, Los Alamos Laboratory expressed an intent to
make use of Outfall 051. Id. (claiming that during the
permitting process Los Alamos Laboratory represented
17
Because the Region did not clearly err or abuse its discretion in
finding that there has been no “change in any condition,” the
Board does not address the Region’s further argument that any
such change must be of a condition “that requires *** elimination
of any discharge *** (for example, plant closure or termination of
discharge by connection to a POTW).” 40 C.F.R. § 122.64(a)(4); see
Region’s Response at 6-7.
App. 39
that “discharges through Outfall 051 would be
required”). From there, Concerned Citizens argues that
it relied on Los Alamos Laboratory’s representations
that it intended to discharge from Outfall 051 and thus
could not have raised an earlier challenge to the 2014
Permit. See id. at 8-12.
However, Concerned Citizens did not make this
argument before filing its Reply or otherwise claim that
termination was appropriate under 40 C.F.R.
§ 122.64(a)(2) because of a “failure * * * to disclose” or
“misrepresentation of any relevant facts” during the
2014 permitting process. And because this argument is
raised for the first time in Concerned Citizens’ Reply,
it is beyond the scope of the Informal Appeal and is
therefore untimely. Cf. In re Russell City Energy Ctr.
LLC, 15 E.A.D. 1, 53 (EAB 2010) (declining to consider
new issues raised for the first time in a reply brief); In
re Knauf Fiber Glass, GmbH, 8 E.A.D. 121, 126 n.9
(EAB 1999) (new issues raised in reply briefs are
equivalent to late-filed appeals and are thus untimely).
Even had Concerned Citizens timely raised this
argument, however, the argument is contradicted by
the record here. Although Permittees acknowledged
during the application process that the use of the
mechanical evaporator had resulted in no discharges
from Outfall 051 since 2010, Permittees nevertheless
sought a permit for continued discharges under certain
circumstances. As discussed above, the permitting
record for the 2014 Permit made clear that discharges
from Outfall 051 would only be necessary if the
mechanical evaporator or Zero Liquid Discharge tanks
become unavailable due to malfunction, maintenance,
App. 40
or capacity shortage. Indeed, the permitting record
refers to Outfall 051 requirements in multiple places as
applying only “if” discharges resume. Thus, contrary to
Concerned Citizens’ assertion, the record alerted the
public to the fact that discharges might not occur at all.
This argument is also at odds with Concerned
Citizens’ own prior statements. As early as November
2015, Concerned Citizens raised concerns about the
2014 Permit demonstrating its understanding that
Permittees had sought and the Region had issued the
2014 Permit covering Outfall 051, even though it was
known that there had been no discharges since 2010.
See Region’s 2015 Response Letter (Ex. UU to
Termination Request) (referencing Concerned Citizens’
Nov. 2015 letter). Further, in its termination request,
Concerned Citizens acknowledged that the Permittees
had stated that there had been no discharges to Outfall
051 since 2010 and had expressly requested a permit
for Outfall 051 “only for a possible discharge,” and as a
“fallback” for use in possible contingencies. See
Termination Request at 9; see also id. at10 (stating
that 2012 Permit Re-Application sought leave to
provide effluent characteristics for Outfall 051 only “if
discharges * * * are initiated during the life of the new
permit”), 11 (stating that the final permit refers to
regulation of discharges from Outfall 051 “if discharges
resume”) (emphasis in original). In short, there is no
merit in Concerned Citizens’ argument that the
Permittees never disclosed the possibility that
App. 41
discharges from Outfall 051 might not occur at all, as
Concerned Citizens’ own submissions demonstrate.18
V. CONCLUSION
For the reasons stated above, the Board concludes
that Concerned Citizens has not established that the
Region clearly erred or abused its discretion in denying
Concerned Citizens’ request to terminate the 2014
Permit for Outfall 051. Concerned Citizens’ Informal
Appeal is therefore denied.19
So ordered.
*** Certificate of Service omitted ***
18
In a post-argument brief, Concerned Citizens now contends that
it could not have known during the comment period on the draft
permit that the Zero Liquid Discharge tanks had been constructed,
and on that basis, claims termination is appropriate. See
Concerned Citizens for Nuclear Safety Post-Argument Submission
Pursuant to 40 C.F.R. §§ 124.2 and 124.5(b) at 7 (Feb. 27, 2018).
The Board did not grant the parties leave to file post-argument
briefs but instead only directed the filing of publicly-available
information regarding the status of the State permitting process
for the Zero Liquid Discharge tanks, Tr. at 67-68, and this
argument raised for the first time in a post-argument brief is
untimely. In any event, regardless of when the Zero Liquid
Discharge tanks were constructed, the permitting record – and
specifically the 2012 Permit Re-Application and the Region’s Fact
Sheet for the 2013 draft permit – alerted the public that with
either the mechanical evaporator or the Zero Liquid Discharge
tanks, discharges might not occur at all.
19
Because we conclude that the Region did not clearly err or abuse
its discretion in denying the termination request, we do not need
to address Concerned Citizens’ argument that EPA lacked
authority under the CWA to issue a permit for potential
discharges.
App. 42
APPENDIX C
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
REGION 6
1445 ROSS AVENUE, SUITE 1200
DALLAS TX 75202-2733
[Dated: August 16, 2017]
Lindsay A. Lovejoy, Jr.
Attorney at Law
3600 Cerrillos Road, Unit 1000A
Santa Fe, NM 87507
Jonathan Block, Eric D. Jantz,
Douglas Meiklejohn, Jaimie Park,
New Mexico Environmental Law Center
1405 Luisa Street, Suite 5
Santa Fe, NM 87506
RE:
Request to Terminate NPDES Permit
#NM0028355 as to Outfall #051 for Radioactive
Liquid Waste Treatment Facility
Dear Mr. Lovejoy and Mr. Jantz:
This letter is in response to the above-referenced
request to terminate permit coverage, which was filed
pursuant to 40 C.F.R. § 124.5 with the Acting Regional
Administrator of EPA Region 6 (Region 6) by
Concerned Citizens for Nuclear Safely (CCNS) on
March 9, 2017 (“Request to Terminate”). CCNS asks
the Region to terminate permit coverage for Outfall 051
App. 43
under NPDES Permit #NM0028355, issued in 2014 to
Los Alamos National Security, LLC (LANS) and the
Department of Energy (DOE) as co-permittees for the
Los Alamos National Laboratory facility located at Los
Alamos, NM (LANL). The permit authorizes LANL to
discharge from eleven sanitary and/or industrial
outfalls, including a discharge of treated radioactive
liquid waste from the Radioactive Liquid Waste
Treatment Facility (RLWTF) through Outfall 051 into
Mortandad Canyon.
CCNS argues that because LANL’s RLWTF facility was
redesigned as a zero discharge facility in the early
2000’s and has not discharged since 2010, Outfall 051
does not require NPDES permit coverage, and that in
fact issuing such coverage is outside the jurisdiction of
EPA pursuant to federal court rulings in National Pork
Producers Council v. EPA, 635 F.3d 738 (5th Cir.
2011)(“National Pork Producers”) and Waterkeeper
Alliance, Inc. v. EPA, 399 F.3d 486 (2d Cir.
2005)(“Waterkeeper”). CCNS further argues that
NPDES coverage for Outfall 051 is improper because it
makes LANL’s RSWTF eligible for a Waste Water
Treatment Unit (WWTU) regulatory exemption under
the Resource Conservation and Recovery Act (RCRA)
despite no actual Clean Water Act (CWA) discharges.
Region 6 does not agree with CCNS’s arguments and
has determined not to unilaterally propose termination
of LANL’s NPDES permit coverage for Outfall 051.
Under 40 C.F.R. § 124.5(b), if the Regional
Administrator decides a request to terminate NPDES
permit coverage filed by an interested party is not
justified, the Regional Administrator must send the
App. 44
requester “a brief written response giving a reason for
the decision.” Accordingly, Region 6 provides the
following response.
40 C.F.R. § 124.5(a) states that NPDES permits may
only be terminated for the reasons specified in 40
C.F.R. § 122.64. That section provides the following
causes for terminating a permit during its term:
(1)
(2)
(3)
(4)
Noncompliance by the permittee with any
condition of the permit;
The permittee’s failure in the application
or during the permit issuance process to
disclose fully all relevant facts, or the
permittee’s misrepresentation of any
relevant facts at any time;
A determination that the permitted
activity endangers human health or the
environment and can only be regulated to
acceptable levels by permit modification
or termination; or
A change in any condition that requires
either a temporary or permanent
reduction or elimination of any discharge
or sludge use or disposal practice
controlled by the permit (for example,
plant closure or termination of discharge
by connection to a POTW). 40 C.F.R.
§ 122.64(a)(l) - (4).
CCNS does not allege that LANL is in violation of its
permit conditions with regard to Outfall 051 or that the
permittees failed to disclose or misrepresented any
relevant facts. In addition, there is no information to
support a determination that the permitted discharge
App. 45
endangers human health or the environment and could
only be regulated through termination of the permit.
Finally, EPA is not aware of a change in any condition
(e.g., facility closure or termination of the discharge by
connection to a POTW) that would warrant termination
of permit coverage for Outfall 051 pursuant to
§ 122.64(a)(4). In their application for permit coverage,
LANS and DOE described the “no discharge” nature of
the RLWTF and specifically sought permit coverage for
Outfall 051 to protect against liability in case of a
future discharge. The permittees indicated that under
certain circumstances, e.g. if one or both evaporative
systems have to be taken off-line, a discharge could
occur. Without permit authorization, such a discharge
could subject the permittees to liability under the CWA
for discharging without a permit.
40 C.F.R. § 122.21 places the burden on the owner/
operator of a facility to obtain NPDES permit coverage
prior to discharge. If the owner/operator does not seek
coverage and a discharge occurs, the owner/operator is
strictly liable under the CWA and subject to civil
and/or criminal penalties. Consequently, EPA generally
defers to an owner/operator’s determination that a
discharge could occur and that permit coverage is
needed. It is not unusual for facilities that do not
routinely discharge to seek and retain permit coverage
to protect against liability in the event of an
unanticipated discharge.
Region 6 does not read National Pork Producers or
Waterkeeper to prohibit EPA from issuing an NPDES
permit to a facility seeking coverage to protect against
liability in the event of a discharge. Those cases dealt
App. 46
with EPA’s authority to require operators of
Concentrated Animal Feeding Operations (CAFOs) to
obtain NPDES permit coverage when there had been
no discharge. The Courts in those cases found that EPA
could require discharging CAFOs to obtain NPDES
permits, but that the agency could not mandate
coverage in cases where there was no actual discharge.
The burden was on the CAFO owner/operator to
determine whether to seek permit coverage or to risk
liability in case of a discharge. Neither National Pork
Producers nor Waterkeeper address EPA’s authority to
issue a permit to a facility requesting coverage for a
possible discharge. In such cases, as in the current
situation, EPA has authority under CWA § 402 (a) to
issue a permit authorizing the discharge of pollutants
should one occur. Otherwise, the CWA’s requirement
that facilities obtain NPDES permit coverage prior to
discharge would be impossible for the agency to
implement.
As to CCNS’s argument that LANL’s NPDES permit
for discharges from Outfall 051 should be terminated
because the NPDES permit coverage allows LANL to
obtain a Waste Water Treatment Unit (WWTU)
regulatory exemption under the Resource Conservation
and Recovery Act (RCRA), Region 6 has determined
this argument to be outside the scope of our decision.
Whether or not issuance of NPDES permit coverage
might trigger the RCRA WWTU regulatory exemption
has no bearing on EPA’s NPDES permitting decisions,
which must be based on the requirements of the CWA
and implementing regulations.
App. 47
For the above reasons, Region 6 has determined
CCNS’s Request to Terminate LANL’s NPDES permit
coverage for Outfall 051 under NPDES Permit
No. NM0028355 is not justified. Should you have any
question regarding this matter, please contact Ms.
Stacey Dwyer of my staff at (214) 665-6729, or Renea
Ryland at (214) 665-2130.
Sincerely,
/s/ W K Honker
William K. Honker, P.E.
Director
Water Division
cc: Charles F. McMillan, Director
Los Alamos National Laboratory
P.O. Box 1663 (MS K499)
Los Alamos, New Mexico 87545
Kimberly D. Lebak, Manager
Los Alamos Field Office, U.S. DOE
3747 West Jemez Road (MS A316)
Los Alamos, New Mexico 87544
Bruce Yurdin
Director, Water Protection Division
New Mexico Environment Department
P.O. Box 5469
Santa Fe, NM 87502-5469
App. 48
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 18-9542
(EPA No. 17-05)
(Environmental Protection Administration)
[Filed: June 23, 2020]
__________________________________________
CONCERNED CITIZENS FOR
)
NUCLEAR SAFETY, INC.,
)
)
Petitioner,
)
)
v.
)
)
UNITED STATES ENVIRONMENTAL
)
PROTECTION AGENCY, et al.,
)
)
Respondents.
)
__________________________________________)
ORDER
Before MATHESON, MURPHY, and EID, Circuit
Judges.
Petitioner’s petition for rehearing is denied.
The petition for rehearing en banc was transmitted
to all of the judges of the court who are in regular
active service. As no member of the panel and no judge
App. 49
in regular active service on the court requested that the
court be polled, that petition is also denied.
Entered for the Court
/s/ Christopher M. Wolpert
CHRISTOPHER M. WOLPERT, Clerk
App. 50
APPENDIX E
33 U.S.C. 1342(a)-(b)
33 U.S.C. 1342. National pollutant discharge
elimination system
(a) Permits for discharge of pollutants
(1) Except as provided in sections 1328 and 1344 of
this title, the Administrator may, after opportunity
for public hearing issue a permit for the discharge
of any pollutant, or combination of pollutants,
notwithstanding section 1311(a) of this title, upon
condition that such discharge will meet either (A)
all applicable requirements under sections 1311,
1312, 1316, 1317, 1318, and 1343 of this title, or (B)
prior to the taking of necessary implementing
actions relating to all such requirements, such
conditions as the Administrator determines are
necessary to carry out the provisions of this chapter.
(2) The Administrator shall prescribe conditions for
such permits to assure compliance with the
requirements of paragraph (1) of this subsection,
including conditions on data and information
collection, reporting, and such other requirements
as he deems appropriate.
(3) The permit program of the Administrator under
paragraph (1) of this subsection, and permits issued
thereunder, shall be subject to the same terms,
conditions, and requirements as apply to a State
App. 51
permit program and permits issued thereunder
under subsection (b) of this section.
(4) All permits for discharges into the navigable
waters issued pursuant to section 407 of this title
shall be deemed to be permits issued under this
subchapter, and permits issued under this
subchapter shall be deemed to be permits issued
under section 407 of this title, and shall continue in
force and effect for their term unless revoked,
modified, or suspended in accordance with the
provisions of this chapter.
(5) No permit for a discharge into the navigable
waters shall be issued under section 407 of this title
after October 18, 1972. Each application for a
permit under section 407 of this title, pending on
October 18, 1972, shall be deemed to be an
application for a permit under this section. The
Administrator shall authorize a State, which he
determines has the capability of administering a
permit program which will carry out the objectives
of this chapter to issue permits for discharges into
the navigable waters within the jurisdiction of such
State. The Administrator may exercise the
authority granted him by the preceding sentence
only during the period which begins on October 18,
1972, and ends either on the ninetieth day after the
date of the first promulgation of guidelines required
by section 1314(i)(2) of this title, or the date of
approval by the Administrator of a permit program
for such State under subsection (b) of this section,
whichever date first occurs, and no such
authorization to a State shall extend beyond the
App. 52
last day of such period. Each such permit shall be
subject to such conditions as the Administrator
determines are necessary to carry out the provisions
of this chapter. No such permit shall issue if the
Administrator objects to such issuance.
(b) State permit programs
At any time after the promulgation of the guidelines
required by subsection (i)(2) of section 1314 of this title,
the Governor of each State desiring to administer its
own permit program for discharges into navigable
waters within its jurisdiction may submit to the
Administrator a full and complete description of the
program it proposes to establish and administer under
State law or under an interstate compact. In addition,
such State shall submit a statement from the attorney
general (or the attorney for those State water pollution
control agencies which have independent legal counsel),
or from the chief legal officer in the case of an
interstate agency, that the laws of such State, or the
interstate compact, as the case may be, provide
adequate authority to carry out the described program.
The Administrator shall approve each submitted
program unless he determines that adequate authority
does not exist:
(1) To issue permits which—
(A) apply, and insure compliance with, any
applicable requirements of sections 1311, 1312,
1316, 1317, and 1343 of this title;
(B) are for fixed terms not exceeding five years;
and
App. 53
(C) can be terminated or modified for cause
including, but not limited to, the following:
(i) violation of any condition of the permit;
(ii) obtaining a permit by misrepresentation,
or failure to disclose fully all relevant facts;
(iii) change in any condition that requires
either a temporary or permanent reduction
or elimination of the permitted discharge;
(D) control the disposal of pollutants into wells;
(2)
(A) To issue permits which apply, and insure
compliance with, all applicable requirements of
section 1318 of this title; or
(B) To inspect, monitor, enter, and require
reports to at least the same extent as required in
section 1318 of this title;
(3) To insure that the public, and any other State
the waters of which may be affected, receive notice
of each application for a permit and to provide an
opportunity for public hearing before a ruling on
each such application;
(4) To insure that the Administrator receives notice
of each application (including a copy thereof) for a
permit;
(5) To insure that any State (other than the
permitting State), whose waters may be affected by
the issuance of a permit may submit written
recommendations to the permitting State (and the
App. 54
Administrator) with respect to any permit
application and, if any part of such written
recommendations are not accepted by the
permitting State, that the permitting State will
notify such affected State (and the Administrator)
in writing of its failure to so accept such
recommendations together with its reasons for so
doing;
(6) To insure that no permit will be issued if, in the
judgment of the Secretary of the Army acting
through the Chief of Engineers, after consultation
with the Secretary of the department in which the
Coast Guard is operating, anchorage and navigation
of any of the navigable waters would be
substantially impaired thereby;
(7) To abate violations of the permit or the permit
program, including civil and criminal penalties and
other ways and means of enforcement;
(8) To insure that any permit for a discharge from
a publicly owned treatment works includes
conditions to require the identification in terms of
character and volume of pollutants of any
significant source introducing pollutants subject to
pretreatment standards under section 1317(b) of
this title into such works and a program to assure
compliance with such pretreatment standards by
each such source, in addition to adequate notice to
the permitting agency of (A) new introductions into
such works of pollutants from any source which
would be a new source as defined in section 1316 of
this title if such source were discharging pollutants,
(B) new introductions of pollutants into such works
App. 55
from a source which would be subject to section
1311 of this title if it were discharging such
pollutants, or (C) a substantial change in volume or
character of pollutants being introduced into such
works by a source introducing pollutants into such
works at the time of issuance of the permit. Such
notice shall include information on the quality and
quantity of effluent to be introduced into such
treatment works and any anticipated impact of such
change in the quantity or quality of effluent to be
discharged from such publicly owned treatment
works; and
(9) To insure that any industrial user of any
publicly owned treatment works will comply with
sections 1284(b), 1317, and 1318 of this title.
42 U.S.C. 6925(a)
42 U.S.C. 6925.Permits for treatment, storage, or
disposal of hazardous waste
(a)
Permit requirements
Not later than eighteen months after October 21,
1976, the Administrator shall promulgate regulations
requiring each person owning or operating an existing
facility or planning to construct a new facility for the
treatment, storage, or disposal of hazardous waste
identified or listed under this subchapter to have a
permit issued pursuant to this section. Such
regulations shall take effect on the date provided in
section 6930 of this title and upon and after such date
the treatment, storage, or disposal of any such
hazardous waste and the construction of any new
facility for the treatment, storage, or disposal of any
App. 56
such hazardous waste is prohibited except in
accordance with such a permit. No permit shall be
required under this section in order to construct a
facility if such facility is constructed pursuant to an
approval issued by the Administrator under section
2605(e) of title 15 for the incineration of
polychlorinated biphenyls and any person owning or
operating such a facility may, at any time after
operation or construction of such facility has begun, file
an application for a permit pursuant to this section
authorizing such facility to incinerate hazardous waste
identified or listed under this subchapter.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.