District of Columbia Municipal Separate Storm Sewer System (MS4) (Board decision, January 14, 2013)

Plain-English summary

District of Columbia Water and Sewer Authority and Wet Weather Partnership jointly petitioned for review of the District of Columbia municipal separate storm sewer system permit. The petitioners and the District Government later submitted a settlement agreement allocating responsibility under the permit and resolving the issues raised in the appeal. The U.S. Environmental Protection Agency Region 3 did not oppose dismissal. The Environmental Appeals Board dismissed the petition for review with prejudice. The order does not state a penalty or reproduce the settlement agreement.

Decision snapshot

• Cited authorities: None stated in the release.
• Outcome: The petition for review was dismissed with prejudice after the parties submitted a settlement agreement and joint stipulation.
• Key point: A settlement resolving a permit appeal can support dismissal with prejudice when the permitting Region does not oppose it.

Full text (EPA EAB public release)

                   ENVIRONMENTAL APPEALS BOARD
          UNITED STATES ENVIRONMENTAL PROTECTION
                          WASHINGTON, D.C.
                                                                                 JAN 1 4 2013

In re: )
)
Government of the District of Columbia, )
Municipal Separate Storm Sewer System )
) NPDES Appeal No. 11-05
NPDES Permit No. DC 0000221 )
)

                   ORDER DISMISSING PETITION FOR REVIEW

     On January 11, 2013, petitioners District of Columbia Water and Sewer Authority

("DC Water") and Wet Weather Partnership (collectively, "Petitioners"), who jointly filed a

petition for review in the above-captioned matter, and the Government of the District of

Columbia through the District Department of the Environment ("District Government") together

filed a Joint Stipulation of Dismissal with Prejudice requesting that the Environmental Appeals

Board ("Board") dismiss with prejudice the petition for review in the above-captioned matter.

Joint Stipulation of Dismissal With Prejudice (Jan. 11, 2013).

     On January 11, 2013, DC Water and the District Government executed a Settlement

Agreement that allocates responsibility under the municipal separate storm sewer system

("MS4") permit and resolves the issues raised in the petition for review. Both DC Water and the

District Government consider the agreement "to be a just, fair, and equitable resolution of the

claims raised" in the petition for review. Id. at 1.

     Petitioners now request that the Board dismiss their petition for review with prejudice

pursuant to the terms of the Settlement Agreement. Id. at 2. Region 3 of the U.S. Environmental

Protection Agency, which issued the MS4 permit, does not oppose the Joint Stipulation of

Dismissal with Prejudice or Petitioners' request for dismissal with prejudice. Id.

   Upon consideration, the Board hereby dismisses the petition for review in the above-

captioned matter with prejudice.

   So ordered.



                                                        Catherine R. McCabe
                                                    Environmental Appeals Judge



                                            -2-


                             CERTIFICATE OF SERVICE
   I hereby certify that copies of the foregoing Order Dismissing Petition for Review in the

matter of Government of the District of Columbia, Municipal Separate Storm Sewer System,
NPDES Appeal No. 11-05, were sent to the following persons in the manner indicated:

By First Class U.S. Mail:

Amy E. McDonnell Randy Hayman
Alan Barak General Counsel
Office of the Attorney General District of Columbia Water and Sewer Auth.
District Department of the Environment 5000 Overlook Avenue, SW
1200 First Street NE, Seventh Floor Washington, DC 20032
Washington, DC 20002

Irvin B. Nathan Gregory Hope
Attorney General for the District of Columbia Principal Counsel
441 4th Street, N. W. District of Columbia Water and Sewer Auth.
Washington, D.C. 20001 5000 Overlook Avenue, SW
Washington, DC 20032
Ellen Efros
Assistant Deputy Attorney General Jennifer C. Chavez
Civil Litigation Division Earthjustice
441 4th Street, N.W., Suite 600 South 1625 Massachusetts Avenue, N.W.
Washington, D.C. 20001 Suite 702
Washington, DC 20036
F. Paul Calamita
Carla S. Pool Rebecca J. Hammer
AquaLaw, PLC Natural Resources Defense Council
6 South 5th Street 1152 15th Street, N.W.
Richmond, VA 23219 Suite 300
Washington, DC 20005

By EPA Pouch Mail:

Kelly A. Gable
Assistant Regional Counsel
U.S. Environmental Protection Agency, Region 3
1650 Arch Street (3RC20)
Philadelphia, Pennsylvania 19103-2029

Date: JAN 1 4 2013 [signature] Annette Duncan
Secretary