Post date: Sep 01, 2014 4:55:57 AM
DEQ Judge Finds Permit Clause Unlawful
In a controversial ruling, Contested Case Administrative Law Judge Richard Lacasse ordered that a clause in the Pall Life Sciences (PLS) modified NPDES discharge permit was not supported by law. The clause stated: If any condition of this permit modification is administratively challenged, the entire permit modification is stayed ...
Since SRSW and the City of Ann Arbor challenged the permit, the discharge rate reverted back to the previously permitted rate of 800 gpm. SRSW and the City argued, in part, because the 1300 gpm discharge rate was approved without lowering the 1,4-dioxane concentrations in the discharge, the increased discharge could damage groundwater and surface water supplies.
One of the reasons Judge Lacasse gave for his removing the stay clause was that it undermines the SWQD's (Surface Water Quality Division's) efforts in carrying out its responsibility to administer Part 31. This is ironic because SWQD, who issued the permit, included the clause on the advice of counsel.
Another reason given was that it has the effect of placing the burden of proof on PLS to show that the 1300 gpm will cause no damage. SRSW contends that this would be a good thing… it’s precisely the kind of protective language that was in the original 1992 permit’s special condition requiring the company to prove that their discharge would do no harm before it was allowed to proceed. The state removed that special condition without any proof that the discharge would not cause damage.
It’s not clear what if any action SWQD will take regarding the stay of the 1300 gpm discharge, so it's not yet clear if the 1300 gpm will be allowed while the contested case proceeds.