Government of the District of Columbia, Municipal Separate Storm Sewer System (Board decision, November 8, 2007)

Plain-English summary

The Government of the District of Columbia sought review of contested terms in NPDES Permit No. DC0000221 for its municipal separate storm sewer system. EPA Region 3 withdrew those permit terms after settlement negotiations did not resolve the parties' differences and planned to prepare a new draft permit modification for public comment. The Environmental Appeals Board dismissed both petitions with prejudice because the withdrawn terms made the appeals moot. The order says that the dismissal did not limit the petitioners' rights to comment on draft revisions, petition for later permit modifications, or challenge future EPA action concerning the permit. The order does not state a penalty.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.5, 124.11, and 122.62.
• Outcome: NPDES Appeal Nos. 06-07 and 06-08 were dismissed with prejudice as moot.
• Key point: The dismissal did not decide the merits or prevent future comments and challenges to reissued permit conditions.

Full text (EPA EAB public release)

                BEFORE THE ENVIRONMENTAL APPEALS BOARD
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                              WASHINGTON, D.C.

                                                                             NOV  8 2007
                                                                             Clerk, Environmental Appeals Board
                                                                             INITIALS

In re: )
)
Government of the District of Columbia, ) NPDES Appeal Nos. 06-07
Municipal Separate Storm Sewer System ) and 06-08
)
NPDES Permit No. DC0000221 )

                 ORDER DISMISSING PETITIONS FOR REVIEW

     On October 29, 2007, Region 3 of the U.S. Environmental Protection Agency filed a

"Notice of Withdrawal of Permit Amendment, Motion for Dismissal with Prejudice and

Memorandum in Support Thereof" with the Environmental Appeals Board. In its filing, the

Region explains that it has been engaged in extensive settlement negotiations with both

petitioners in this case, but to date the parties have been unable to resolve their differences

through that mechanism. Thus, the Region has chosen at this juncture to withdraw all the

contested permit terms. The Region plans to prepare a new draft permit modification addressing

the disputed issues and will submit the new draft terms for public comment in the coming

months. The Region contends that as a result of its withdrawal of the contested permit terms, the

pending petitions for review of the permit amendment are moot and should be dismissed.

     Counsel for petitioners report that their clients do not oppose the dismissal of their

petitions as moot, but petitioners harbor some concern that a "dismissal with prejudice" might be

misconstrued as a Board decision on the merits that might limit their rights to review, comment

on, and/or subsequently petition for review of any reissued permit conditions. Petitioners

therefore request that the Board add explicit language to the dismissal order to ensure

preservation of these rights.

     For good cause shown, the petitions for review, designated as Board NPDES Appeal

Nos. 06-07 and 06-08, are hereby DISMISSED WITH PREJUDICE. These dismissals with

prejudice have no effect on the petitioners' rights to submit comments on draft permit revisions

or modifications pursuant to 40 C.F.R. § 124.11, to later petition the Board for appropriate

additional permit modifications pursuant to 40 C.F.R. §§ 124.5 and 122.62, or to challenge any

future EPA action with respect to NPDES Permit No. DC0000221 or any other permit on any

grounds.

  So ordered.


                              ENVIRONMENTAL APPEALS BOARD

Dated: October 8, 2007 By: Anna L. Wolgast
Environmental Appeals Judge

                                  -2-


                       CERTIFICATE OF SERVICE

   I hereby certify that copies of the foregoing Order Dismissing Petitions for Review in

the matter of Government of the District of Columbia, Municipal Separate Sewer System,
NPDES Appeal Nos. 06-07 and 06-08, were sent to the following persons in the manner
indicated:

By Facsimile and First Class U.S. Mail:

   David E. Evans, Esq.                         Caroline Burnett, Esq.
   Darin K. Waylett, Esq.                       Assistant Attorney General
   McGuireWoods L.L.P.                          District of Columbia Department
   One James Center                               of the Environment
   901 East Cary Street                          51 N Street, N.E., Room 6004
   Richmond, Virginia 23219-4030                 Washington, D.C. 20002-3323
   telephone: (804) 775-4317                     telephone: (202) 535-2609
   facsimile: (804) 698-2049                     facsimile: (202) 535-2881

   David S. Baron, Esq.
   Jennifer Chavez, Esq.
   Earthjustice
   1625 Massachusetts Avenue, N.W.
   Suite #702
   Washington, D.C. 20036-2212
   telephone: (202) 667-4500
   facsimile: (202) 667-2356

By Facsimile and EPA Pouch Mail:

   Lori G. Kier, Esq.
   Senior Assistant Regional Counsel
   U.S. Environmental Protection Agency, Region III
   1650 Arch Street (3RC20)
   Philadelphia, Pennsylvania 19103-2029
   telephone: (215) 814-2656
   facsimile: (215) 814-2603

Dated: NOV - 8 2007

                                   Annette Duncan
                                   Secretary