IBP, Inc. v. Iowa Department of Natural Resources

515 N.W.2d 554, 1994 Iowa App. LEXIS 14, 1994 WL 151071
CourtCourt of Appeals of Iowa
DecidedFebruary 25, 1994
DocketNo. 93-0061
StatusPublished
Cited by1 cases

This text of 515 N.W.2d 554 (IBP, Inc. v. Iowa Department of Natural Resources) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
IBP, Inc. v. Iowa Department of Natural Resources, 515 N.W.2d 554, 1994 Iowa App. LEXIS 14, 1994 WL 151071 (iowactapp 1994).

Opinion

HABHAB, Judge.

IBP, Inc. (IBP) appeals a district court ruling affirming the Environmental Protection Commission’s decision regarding a National Pollutant Discharge Elimination System (NPDES) permit regulating IBP’s discharge of wastewater.

IBP operates a hog processing facility and wastewater treatment plant that discharges pollutants through two outfalls. One outfall discharges pollutants into the Iowa River, located to the west of the facility, and the other discharges into the Cedar River, located to the east of the facility. The IBP facility is located between the two rivers and just upstream from the juncture of the Iowa and Cedar Rivers.

In 1986 the Iowa Department of Natural Resources (DNR) granted IBP a permit to operate the wastewater treatment plant and to discharge pollutants into the Cedar and Iowa Rivers. Pollutants may not be discharged into waterways except for adequately treated pollutants discharged pursuant to a permit from the DNR. See 567 Iowa Admin.Code 62.1(1). In accordance with its 1986 permit, IBP discharged into the main channel of the Cedar River. About 200 feet downstream, however, the flow is diverted to a “cutoff” channel. The cutoff stretches for approximately 550 feet and then separates into three fingers which flow through an island called Rabbit Island. The three fingers flow into the Iowa and Cedar Rivers. Approximately forty-seven percent of the flow of the Cedar River goes through this cutoff.

In July 1989 the DNR informed IBP it was amending IBP’s permit. IBP proposed a work plan for the mixing zone study that was to be conducted by its contractor, the Advent Group. The DNR informed IBP its work [556]*556plan needed to include flow data from the cutoff channel, as well as from the Cedar River. In December 1989, accompanied by representatives from the DNR and IBP, Advent conducted the study of the mixing zones. At that time, Ralph Turkle, an environmental engineer for the DNR, noticed one of the three fingers of the cutoff channel had closed since May 1989. Advent attempted to simulate the mixing conditions in the Cedar’s main channel if the cutoff were to close and its water flow was diverted to the main channel. Advent injected dye east of the tip of Rabbit Island in the main channel of the Cedar to the same width of the dye plume that had been earlier observed in the cutoff and at the same distance downstream. Measurements were taken and dispersion ratios calculated. The study conducted in the main channel, however, did not, and could not, simulate the increased flow and mixing characteristics that would occur if the cutoff closed.

The DNR used Advent’s study to determine the discharge limits for each river and issued a draft copy of IBP’s permit on April 18, 1990. The limits set forth in the drafted permit for the Cedar river were based on the mixing conditions found in the Cedar’s main channel. The calculations used to determine effluent limits in this draft permit assumed all of IBP’s discharge would be to one river or the other.

On May 14, 1990, IBP responded to the draft permit, objecting to the prohibition against simultaneous discharges. IBP requested a modification of the limits based on permanent, simultaneous discharges into both the Iowa and Cedar. IBP also questioned whether the cutoff channel should have been used instead of the main channel in determining the effluent limits for the Cedar River. On May 30, 1990, the DNR granted IBP’s request for simultaneous discharges and informed IBP the information would be provided to the public at a hearing. A public hearing on the draft permit was held on June 5, 1990. The issue of simultaneous discharges was raised at the hearing but the issue of the proper mixing zone for the Cedar River was not raised. It was not until June 25, 1990, and July 9, 1990, that Advent and IBP again questioned the DNR’s reliance upon the Cedar’s main channel as the mixing zone for the purpose of determining effluent limits. Advent and IBP contended the use of the Cedar’s main channel mixing conditions was improper because the actual mixing conditions occurred in the cutoff.

In August 1990 the DNR issued permit No. 58-00-1-00 requiring IBP comply with the conditions set for in the permit. The effluent limits set forth in the permit were based on the mixing conditions in the Cedar’s main channel. The permit allowed for simultaneous discharges but imposed a single effluent limitation upon both rivers. Based on IBP’s request for simultaneous discharges and the fact IBP has only one treatment facility and, thus, can only treat to one effluent quality, the DNR calculated a single effluent concentration based on the more restrictive flow pattern of the Cedar.

IBP objected, contending the use of the Cedar’s main channel mixing conditions was improper because the actual mixing occurred in the cutoff. It also contended the DNR improperly imposed a limit on its discharges into the Iowa based on flow data from the Cedar and argued the DNR should have set individual effluent limits for each river.

After a hearing, the administrative law judge (ALJ) issued a proposed opinion upholding the conditions of the NPDES permit. The ALJ noted the cutoff had nearly closed since the permit issued. Because there was no reliable method of calculating the actual mixing conditions in the main channel if the cutoff completely closed, the ALJ concluded the use of the Cedar’s main channel mixing zone was not unreasonable. The ALJ also found the single concentration limit for both rivers was a result of IBP’s request and was not unreasonable given IBP could only treat its wastewater to one effluent quality.

The Environmental Protection Commission affirmed the ALJ. IBP sought judicial review. The district court also affirmed. IBP now appeals.

Our review is at law. Furry v. Iowa Dep’t of Transp., 464 N.W.2d 869, 870 (Iowa 1991) (citation omitted). We review the record to determine if the agency’s decision is [557]*557supported by substantial evidence and comports with the applicable rules of law. Zeches v. Iowa Dep’t of Job Sero., 333 N.W.2d 735, 736 (Iowa App.1983) (citation omitted). We are bound by fact findings of an agency which are supported by substantial evidence on the record as a whole. Arkansas v. Oklahoma, — U.S. -, -, 112 S.Ct. 1046, 1060, 117 L.Ed.2d 239, 259 (1992) (citation omitted); Bearce v. FMC Corp., 465 N.W.2d 531, 534 (Iowa 1991). Although we are not bound by the agency’s interpretation of the law, we may give great weight to its conclusions. Zeches, 333 N.W.2d at 736 (citation omitted).

I. IBP contends the DNR used the wrong mixing zone to determine the effluent limits for the Cedar River outfall. IBP argues the DNR improperly used the main channel of the Cedar River, and instead should have used the cutoff channel as the mixing zone.

The regulatory mixing zone is defined as a delineated portion of a stream or river in which wastewater discharges are allowed to combine and disperse into the water body. 567 Iowa Admin.Code 60.2, 61.2(4). Rule 61.2(4)(a) provides:

Due to extreme variations in wastewater and receiving water characteristics, spatial dimensions of mixing zones shall be defined on a site-specific basis.

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515 N.W.2d 554, 1994 Iowa App. LEXIS 14, 1994 WL 151071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ibp-inc-v-iowa-department-of-natural-resources-iowactapp-1994.