191 



U.S. Environmental Protection Agency, 



Office of Enforcement, 

 Washington, D.C., September 36, 1.980. 



Hon. Gerry E. Studds, 



Chairman, Oceanography Subcommittee, Committee on Merchant Marine and Fisher- 

 ies, House of Representatives, Washington, D.C 



Dear Mr. Chairman: In my recent testimony before the Oceanography Subcom- 

 mittee, Congressman Breaux asked a number of questions concerning the burden of 

 proof under section 403(c) of the Clean Water Act (the Act). Specifically, does EPA 

 or the applicant for an National Pollutant Discharge Elimination System (NPDES) 

 permit determine the degradation to the marine environment as a result of the 

 proposed discharge? 



Section 403(c)(1) of the Act directs the Administrator of EPA to promulgate ocean 

 discharge guidelines to be used in determining the degradation of marine waters 

 when issuing an NPDES permit. Section 403(c)(2) prohibits the issuance of an 

 NPDES permit for an ocean discharge in cases in which there is insufficient infor- 

 mation on the proposed discharge to make a reasonable judgment on the guidelines. 

 The permitting authority must make the determinations called for by section 403(c). 

 The real question, however, is where the law places the burden of presenting 

 sufficient information to that authority to allow the "reasonable judgment" required 

 by the Act. 



EPA's Consolidated Permit Regulations, 45 FR 33290 (May 19, 1980), based on the 

 Administrative Procedure Act, place the ultimate burden of persuading the Agency 

 that an NPDES permit should be issued upon the permit applicant. The permit 

 applicant bears this burden not only in its application for a permit but also in any 

 subsequent envidentiary hearing on the permit. This means that the permit appli- 

 cant should be prepared to submit sufficient information to support a determination 

 to issue the permit. 



Once a permit is issued, that permit, or any of the conditions contained in that 

 permit may be challenged in an evidentiary hearing. When a permit condition is 

 challenged in an evidentiary hearing, EPA bears the burden of going forward to 

 present an affirmative case in support of the challenged permit condition. The 

 permit applicant, or any other hearing party, who contends that the issuance or 

 denial of a permit is improper or invalid, or who challenges the inclusion or deletion 

 of specific permit conditions, has the burden of going forward to present an affirma- 

 tive case at the conclusion of the Agency's presentation. 



The ultimate burden of persuading the Agency to issue an NPDES permit, howev- 

 er, remains at all times on the permit applicant. This is particularly true in the 

 case of an application for an NPDES permit for an ocean discharge because of the 

 requirement in section 403(c)(2) that no permit be issued for such a discharge 

 without sufficient information on which to make a reasonable judgment concerning 

 the effects of the proposed discharge. 



I hope this satisfactorily answers Congressman Breaux' question. A similar letter 

 has been sent to Congressman Breaux. Please let me know if I may provide the 

 Subcommittee additional information. 

 Sincerely yours, 



R. Sarah Compton, 

 Deputy Assistant Administrator 



for Water Enforcement. 



Mr. Studds. The subcommittee will be adjourned. 

 [The following was received for the record:] 



Congress of the United States, 



House of Representatives, 

 Washington, D.C, September 4, 1980. 



Ms. R. Sarah Compton, 



Deputy Assistant Administrator, Office of Water Enforcement, Environmental Protec- 

 tion Agency, Washington, D.C. 



Dear Ms. Compton: As a result of your testimony and response to questions at 

 hearings held by the Oceanography Subcommittee of the House Merchant Marine 

 and Fisheries Committee, I would appreciate your responding to the additional 

 questions listed below. 



(1) Would you please supply this Committee with the raw data only from the EPA 

 study on the effects of drill muds in the Gulf of Mexico, at your earliest conven- 

 ience? 



