Keene Wastewater Treatment Facility (Board decision, December 5, 2007)

Plain-English summary

EPA Region 1 reissued an NPDES permit for the City of Keene's wastewater treatment facility in New Hampshire. The City challenged new limits for total recoverable copper, lead, and zinc, among other permit terms. After the Region withdrew those metal limits and planned a new public notice and comment process, the Board dismissed the City's challenge to those limits as moot and with prejudice. The order preserved the City's right to seek review of future EPA action concerning the permit.

Decision snapshot

• Cited authorities: 33 U.S.C. § 1342; 40 C.F.R. §§ 124.19(a) and 124.19(d).
• Outcome: Procedural dismissal. The challenge to the copper, lead, and zinc limits was dismissed with prejudice as moot.
• Key point: Withdrawal of contested permit provisions before Board review can make the corresponding appeal moot.

Full text (EPA EAB public release)

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

                                                           DEC 5 2007

In re:

City of Keene Wastewater Treatment Facility NPDES Appeal No. 07-18

NPDES Permit No. NH0100790

          ORDER NOTICING PARTIAL WITHDRAWAL OF PERMIT
       AND DISMISSING PORTION OF PETITION FOR REVIEW AS MOOT

On August 24, 2007, Region 1 of the U.S. Environmental Protection Agency reissued NPDES Permit No. NH0100790 to the City of Keene, New Hampshire. The permit authorizes the Keene Wastewater Treatment Facility to discharge treated wastewater to the Ashuelot River, a tributary of the Connecticut River and a regulated water of the United States, subject to certain effluent limits and conditions. On September 28, 2007, the City of Keene filed a petition for review of Permit No. NH0100790 with the Environmental Appeals Board, pursuant to EPA permitting regulations at 40 C.F.R. § 124.19(a). In its appeal, the City challenged, among other things, new and more stringent effluent limits set forth in the permit for discharges of total recoverable copper, lead, and zinc from the Keene WWTF, measured on maximum daily and average monthly bases.

On November 20, 2007, the Regional Administrator for Region 1 filed a notice with the Board withdrawing the disputed metals limits pursuant to 40 C.F.R. § 124.19(d). The Region intends to prepare new draft permit conditions to replace the withdrawn provisions and will release the new permit conditions for public notice and comment at a future time. In the meantime, the corresponding provisions of the City of Keene's prior NPDES permit, which was originally issued in 1994 and administratively continued in 1999, will remain in effect.

The Region filed a companion motion on November 20, 2007, to partially dismiss the City's petition for review of NPDES Permit No. NH0100790. In its motion, the Region points out that at any time prior to the Board issuing a decision to grant or deny a pending NPDES permit appeal, the Regional Administrator has authority to withdraw part or all of a final permit decision and prepare a new draft permit addressing the portions so withdrawn, provided appropriate prior notice of withdrawal is given. See 40 C.F.R. § 124.19(d). In this case, the Region contends that its withdrawal of the disputed metals limits has rendered the City's appeal of those limits moot, and thus requests that the Board dismiss those portions of the pending petition for review.

For good cause shown, the City's appeal of the total recoverable copper, lead, and zinc effluent limits is hereby DISMISSED WITH PREJUDICE. This dismissal with prejudice has no effect on the City's right to petition the Board for review of future EPA action with respect to NPDES Permit No. NH0100790 in accordance with 40 C.F.R. § 124.19.

So ordered.

                     ENVIRONMENTAL APPEALS BOARD

                     Dated: [handwritten date]

                     By: [signature]
                         Edward E. Reich
                         Environmental Appeals Judge

                          CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Noticing Partial Withdrawal of Permit and Dismissing Portion of Petition for Review as Moot in the matter of City of Keene Wastewater Treatment Plant, NPDES Appeal No. 07-18, were sent to the following persons in the manner indicated:

By Facsimile and First Class Mail:

John A. Maclean, City Manager
City of Keene
3 Washington Street
Keene, New Hampshire 03431-3191
telephone: (603) 357-9804
facsimile: (603) 357-9847

Andrew W. Serell, Esq.
Rath, Young & Pignatelli, P.C.
One Capital Plaza
Post Office Box 1500
Concord, New Hampshire 03302-1500
telephone: (603) 226-2600
facsimile: (603) 226-2700

By Facsimile and EPA Pouch Mail:

Samir Bukhari, Assistant Regional Counsel
John Hultgren, Attorney Advisor
U.S. Environmental Protection Agency, Region I
1 Congress Street 1100 (RAA)
Boston, Massachusetts 02114-2023
telephone: (617) 918-1095
facsimile: (617) 918-0095

DEC-5 2007

Date: [stamp]

                     Annette Duncan
                     Secretary