City of Twin Falls Wastewater Treatment Plant (Board decision, March 10, 2010)

Plain-English summary

The City of Twin Falls received an NPDES permit allowing discharges from its Wastewater Treatment Facility into the Snake River. The Idaho Conservation League challenged permit condition 1.B.1 and Appendix A, which addressed pollutant trading. EPA Region 10 later withdrew the contested permit conditions, and the Board dismissed the petition as moot because the challenged conditions no longer existed. The order also cites 40 C.F.R. § 124.19(d), which permits withdrawal before the Board decides whether to grant or deny review.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19(d)
• Outcome: Procedural. The petition for review was dismissed as moot after EPA withdrew the challenged permit conditions.
• Key point: Withdrawal of the challenged permit conditions made the petition moot before the Board decided the merits.

Full text (EPA EAB public release)

                                                                F I L E D
                                                              MAR 10 2010
                                                      Clerk, Environmental Appeals Board
                                                      INITIALS ______________________


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


                                            )

In re: )
City of Twin Falls ) NPDES Appeal No. 09-13 Wastewater Treatment Plant )
)
Permit No. ID-002127-0 )
)

                     ORDER DISMISSING PETITION

    On September 22, 2009, Region 10 of the U.S. Environmental Protection Agency (the

“Region”), issued a National Pollutant Discharge Elimination System permit decision allowing the City of Twin Falls to discharge pollutants from its Wastewater Treatment Facility into the Snake River. On October 26, 2009, the Idaho Conservation League (“ICL”) filed a petition for review with the Environmental Appeals Board (“Board”) under the provisions of 40 C.F.R. pt. 124, seeking review of permit condition 1.B.1 and Appendix A, which authorize the permittee to engage in pollutant trading and establish the conditions under which such trading may take place. See Petition For Review, NPDES Appeal No. 09-13 (filed Oct. 26, 2009). On March 2, 2010, the Region filed a notification of withdrawal of permit condition, informing the permittee and the Board, among others, of the Region’s withdrawal of the contested permit conditions. See Letter from Michael A. Bussell, Director Office of Water and Watersheds, to Ms. Jackie Fields, City Engineer --City of Twin Falls, Notification of Withdrawal of Permit Conditions (Mar. 2, 2010).

    The Region’s notice was accompanied by a motion requesting that the Board dismiss the petition

for review on the grounds of mootness.¹ Petitioner, ICL, does not oppose the Region’s motion.

    Upon consideration, because the challenged permit conditions have been withdrawn,² the

Board dismisses ICL’s petition as moot. See, e.g., In re City of Haverhill Wastewater Treatment Facility, NPDES Appeal No. 08-01 (EAB Feb. 28, 2008) (Order Dismissing Petition for Review).

    So ordered.³


    Dated: March 10, 2010                         By: ________________________________
                                                           Kathie A. Stein
                                                           Environmental Appeals Judge


    ¹ The same motion requested that the Board extend the Region’s deadline to file a

response to NPDES Appeal No. 09-12. The Board will rule on this request in a separate order.

    ² Section 124.19 authorizes the Regional Administrator to withdraw a permit or portions

of a permit at any time prior to the rendering of a decision to grant or deny review. 40 C.F.R.
§ 124.19(d) (“The Regional Administrator, at any time prior to the rendering of a decision under paragraph (c) of this section to grant or deny review of a permit decision, may, upon notification to the Board and any interested parties, withdraw the permit * * *.”).

    ³ The panel deciding this matter is comprised of Environmental Appeals Judges Edward

E. Reich, Kathie A. Stein, and Anna L. Wolgast.

                          CERTIFICATE OF SERVICE

    I hereby certify that copies of the foregoing Order Dismissing Petition in the matter of

City of Twin Falls Wastewater Treatment Plant, NPDES Appeal No. 09-13, were sent to the following persons in the manner indicated:

By EPA Pouch Mail and via fax:

                     Peter Z. Ford
                     Courtney Weber
                     Assistant Regional Counsel
                     U.S. EPA Region 10
                     1200 sixth Avenue, Suite 900, ORC-158
                     Seattle, WA 98101
                     Fax #: (206) 553-0163
                     Phone: (206) 553-1477

By First Class Mail Postage Prepaid
and via fax:

                     Fritz Wonderlich
                     Wonderlich & Wakefield
                     Attorney at Law
                     P.O. Box 1812
                     Twin Falls, Idaho 83303-1812
                     Fax #: (888) 789-0935
                     Phone: (208) 352-0811

                     Justin Hayes
                     Idaho Conservation League
                     P.O. Box 844
                     Boise, Idaho 83701
                     Fax #: (208) 344-0344
                     Phone #: (208) 345-6933 ext. 24

Dated: March 10, 2010 ________
Annette Duncan
Secretary