Mirant Canal, LLC (Board decision, December 11, 2008)

Plain-English summary

EPA Region 1 told the Environmental Appeals Board that it would withdraw certain conditions from Mirant Canal's Clean Water Act discharge permit and re-notice them as draft conditions for public comment. Mirant Canal supported a stay but asked the Board to require broader re-noticing. The Board held that it could not order the Region to broaden its permitting action under 40 C.F.R. § 124.19(d). Because significant permit portions had been withdrawn and initial briefing was incomplete, the Board dismissed the petition without prejudice. Mirant Canal could raise the issues again in a future petition.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19(d)
• Outcome: The petition for review was dismissed without prejudice, and the request for a stay became moot.
• Key point: EPA Region 1 could withdraw final permit terms before the Board decided the petition, and the Board declined to expand the scope of that permitting action.

Full text (EPA EAB public release)

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

                                  DEC 11 2008
                     Clerk, Environmental Appeals Board
                     INITIALS [illegible]

                                  )

In re: )
)
Mirant Canal, LLC ) NPDES Appeal No. 08-10
)
NPDES Permit No. MA0004928 )
)

               ORDER DISMISSING PETITION FOR REVIEW
                          WITHOUT PREJUDICE

    On December 4, 2008, Region 1 of the United States Environmental Protection Agency

filed a Status Report and Motion for Stay of Proceedings in the above-captioned appeal. The Region explains in this filing that it intends to withdraw certain provisions of the challenged Clean Water Act discharge permit and will then re-notice the provisions as draft permit conditions for public comment, consider public comments received, write responses to significant comments, and prepare new final permit conditions. Status Report and Motion for Stay of Proceedings at 3. The Region seeks a stay of the pending permit appeal proceedings until June 1, 2009, to complete these activities. Id. at 4.

    By letter also dated December 4, 2008, the Region began implementing this plan. The

Region notified affected parties and the Environmental Appeals Board of its intent to withdraw the following conditions of the final permit: I.A.2.f (cooling tower blowdown limits); I.A.7.f (heat load reporting requirements); I.A.8 (source water physical data and cooling water intake structure data provision requirements); and I.A.13.g-.h (cooling water intake structure requirements). Letter from Robert W. Varney, Regional Administrator, U.S. EPA Region 1, to Eurika Durr, Clerk, Environmental Appeals Board, U.S. EPA, & Ralph A. Child, Esq., Mirant Canal, LLC 2 (Dec. 4, 2008). Under the permitting regulations, the Region has an absolute right to withdraw a final permit, or portions thereof, at any time prior to the Board's rendering of a decision on a pending petition for review of such permit. 40 C.F.R. § 124.19(d). Accordingly, the Region's action of December 4th is timely.

    On December 8, 2008, Mirant Canal, LLC, filed an answer to the Region's status report

and motion. Mirant Canal supports the Region's request for a stay of proceedings but asks that the Board direct the Region to expand the scope of the provisions that will be re-noticed and upon which public comment will be sought. Answer to Status Report and Motion for Stay at 2-

4. Mirant Canal lists a number of permit conditions it believes are "inextricably intertwined"
   with or a "logical outgrowth" of the disputed conditions and asks that the Board order the Region to accept comments on those and related issues. Id. at 3-4.

   Notably, the Region has already begun the process of withdrawing certain permit terms
   

   and re-noticing permit conditions for public comment. It is doing so by virtue of its specific authority under 40 C.F.R. § 124.19(d) and not by direction of this Board. Thus, the Board has no authority at this juncture to order that the scope of the Region's permitting actions be broadened.

   Given, however, the Region's withdrawal of significant portions of Mirant Canal's final
   

   permit, the potential existence of interrelationships among permit terms, and the fact that the initial briefing on the petition was never completed, the Board hereby dismisses Mirant Canal's petition for review without prejudice. Mirant Canal may raise in a future petition any issue that it raised in the present petition, along with any other issues arising from the Region's future proceedings on the withdrawn permit conditions.

   The Board requests that the Region file a status report with the Board no later than two
   

   weeks after the close of the public comment period on the new permit conditions, or June 1, 2009, whichever is earlier.

   So ordered.
   
                         ENVIRONMENTAL APPEALS BOARD
   

Dated: 12/11/08 By: [signature]
Edward E. Reich
Environmental Appeals Judge

                                  -3-

1 Still pending at this writing are Mirant Canal's request to file a supplemental petition for review of the final permit and the Region's request for substantial additional time to file a response to Mirant's petition.

2 In light of our dismissal of the petition, the Region's request for a stay of these appeal proceedings is moot.

                        CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Dismissing Petition for Review Without Prejudice in the matter of In re Mirant Canal, LLC, NPDES Appeal No. 08-10, were sent to the following persons in the manner indicated:

By Facsimile and First Class U.S. Mail:

James N. Christman, Esq.
Kristy A.N. Bulleit, Esq.
Scott J. Stone, Esq.
Hunton & Williams LLP
951 East Byrd Street
Richmond, Virginia 23219
telephone: (804) 788-8200
facsimile: (804) 788-8218

Ralph A. Child, Esq.

Breton Leone-Quick, Esq.

Colin Van Dyke, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC
One Financial Center
Boston, Massachusetts 02111
telephone: (617) 542-6000
facsimile: (617) 542-2241

By Facsimile and EPA Pouch Mail:

Mark A. Stein, Esq.

Samir Bukhari, Esq.
U.S. Environmental Protection Agency, Region 1
1 Congress Street, Suite 1100 RAA
Boston, Massachusetts 02114-2023
telephone: (617) 918-1040
facsimile: (617) 918-0040

Richard T. Witt, Esq.
Office of General Counsel
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W., Mail Code 2355A
Washington, D.C. 20460
telephone: (202) 564-5496
facsimile: (202) 564-5477

Date: DEC 11 2008

[signature]
Annette Duncan, Secretary